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Parwatibai Vasudeo Abhyankar Vs. Shridhar Nagesh Kapre - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 83 of 1955
Judge
Reported in(1958)60BOMLR1175
AppellantParwatibai Vasudeo Abhyankar
RespondentShridhar Nagesh Kapre
DispositionAppeal dismissed
Excerpt:
bombay rents, hotel and lodging house rates control act (bom. xlvii of 1947), section 13(2) - bombay rents, hotel and lodging house rates control (second amendment) act (bom. lxi of 1953), section 9(2)--effect of act lxi of 1953 upon proviso in explanation to section 13(2) of act xlvii of 1947--plaintiff acquiring interest in lands on june 16, 1947--suit by plaintiff against tenants for possession--proviso in explanation to section 13(2) deleted by amending act during pendency of appeal by tenants--whether plaintiff can be looked upon as landlord of lands and entitled to possession.; the effect of the deletion of the proviso in the explanation below section 13(2) of the bombay rents, hotel and lodging house rates control act, 1947, by the bombay rents, hotel and lodging house rates.....vyas, j.1. this is an appeal by defendants nos. 1 and 2 and it arises out of a judgment and decree passed by the learned assistant judge at satara in civil appeal no. 67 of 1950 which in its turn arose out of a judgment and decree passed by the learned civil judge, j.d., wai, in civil suit no. 57 of 1948. the learned civil judge, by the decree passed by him on january 3, 1950, directed that the defendants do deliver possession of the suit properties to the plaintiff. as regards the future mesne profits, the decree directed that those be determined under the provisions of order xx, rule 12(c), of the civil procedure code. from the said decree passed by the trial court, defendants nos. 1 and 2 went in appeal before the district court, north satara, at satara, and that was appeal no. 67 of.....
Judgment:

Vyas, J.

1. This is an appeal by defendants Nos. 1 and 2 and it arises out of a judgment and decree passed by the learned Assistant Judge at Satara in Civil Appeal No. 67 of 1950 which in its turn arose out of a judgment and decree passed by the learned Civil Judge, J.D., Wai, in Civil Suit No. 57 of 1948. The learned Civil Judge, by the decree passed by him on January 3, 1950, directed that the defendants do deliver possession of the suit properties to the plaintiff. As regards the future mesne profits, the decree directed that those be determined under the provisions of Order XX, Rule 12(c), of the Civil Procedure Code. From the said decree passed by the trial Court, defendants Nos. 1 and 2 went in appeal before the District Court, North Satara, at Satara, and that was appeal No. 67 of 1950. The learned Assistant Judge, who heard that, appeal, confirmed the decree of the trial Court and dismissed the appeal with costs. From that decree of dismissal of appeal, defendants Nos. 1 and 2 have preferred the present second appeal.

2. The properties, which are the subject-matter of this litigation, are Section Nos. 1156, 1157 and 1157A of Wai. The total area of these three properties admeasures 156 sq. yds. The plaintiff contends that the above-mentioned property, viz. Section Nos. 1156, 1157 and 1157A of Wai, is of his ownership. According to the plaintiff's contention, this property originally belonged to one Krishnabai, wife of Pandurang Pawaskar. Krishnabai was in possession and enjoyment of this property. On January 4, 1926, Krishnabai sold this property (S. Nos. 1156, 1157 and 1157A) to Vinayak Chintaman Devarukhkar for Rs. 200. Thereafter, Devarukhkar rented the entire suit property to defendant No. 1. To start with, it was an oral lease and the only rent payable by defendant No. 1 to Devarukhkar was Rs. 9 per year. Since then, says the plaintiff, the defendants who together constitute a joint Hindu family have been in possession of this property as tenants. In course of time, defendant No. 1 executed two rent notes in favour of Devarukhkar and those are exhs. 105 and 106. Exhibit 105 is dated June 30, 1929, and exh. 106 is dated January 25, 1939. The plaintiff says that he purchased the abovementioned entire suit property-S. Nos. 1156, 1157 and 1157 A of Wai-from Devarukhkar under the sale-deed dated June 16, 1947. The plaintiff's case is that, pursuant to that sale-deed, he became the full owner of the suit property. He contends that the defendants are his tenants.

3. The plaintiff's ease then is that as he wanted possession of the above-mentioned property for his personal occupation, he gave a registered notice to defendant No. 1 terminating his tenancy. Defendant No. 2 is the son of defendant No. 1 and the plaintiff says that they are members of a joint Hindu family and it is, therefore, that defendant No. 2 is also made a party to the present suit. Then the plaintiff says that, according to his knowledge, defendant No. 2 obtained a sale-deed in respect of the above-mentioned suit property from a stranger, one Waman Bapu Saitavadkar, the latter purporting to act as a Mukhtyar on behalf of Bapu Chingushet. Therefore, says the plaintiff, he has asked for an alternative relief, viz. that he has claimed possession of the suit property on the ground of his title in ease the defendants were to deny his ownership. It is upon these contentions that the plaintiff has brought the present suit to recover possession of the suit property, Section Nos. 1156, 1157 and 1157A of Wai, from the defendants together with future mesne profits.

4. The plaintiff's suit was resisted by defendant No. 2 who is the son of defendant No. 1. Defendant No. 1 remained ex parte. Defendant Nos. 2's contentions are that Krishnabai was not the owner of the suit property at all, nor her alleged vendee Devarukhkar was the owner of it. According to defendant No. 2, Devarukhkar was never in possession of the suit property. As Devarukhkar had no interest whatever in the suit property, says defendant No. 2, the plaintiff, who contends that he purchased the suit property from Devarukhkar, would derive no title to the suit property. Then it is the contention of defendant No. 2 that the suit property originally belonged to the joint family of one Ealashet Pawaskar, his sons and grand-sons. This Balashet Pawaskar had two sons, Lakhoba and Chingushet. Chingushet had a son Vasudev alias Bapushet. Lakhoba's wife was Eadhabai. Now, as I have just said, defendant No. 2's contention is that the suit property originally belonged to the joint family of Balashet Pawaskar, his sons and grandsons. Ultimately, this property devolved upon Vasudev alias Bapushet as the sole surviving coparcener of that family. According to defendant No. 2's contentions, Vasudev alias Bapushet was the absolute owner of this property and he (defendant No. 2) purchased this property from him (Vasudev alias Bapushet) under the sale-deed dated August 25, 1947, which was subsequently rectified on October 1, 1948. In pursuance of this sale-deed, says defendant No. 2, he became the full owner of the entire suit property.

5. Then the further contentions of defendant No. 2 are that there was no relationship of a landlord and tenant between the plaintiff or his predecessors-in-title and himself so far as the suit property is concerned. Defendant No. 2 says that whatever rent notes might have been passed by defendant No. 1 in favour of the plaintiff's vendor, they were not binding upon him. But, even in case it be held that defendent No. 2 was a tenant along with defendant No. 1 of the plaintiff, even so the notice given by the plaintiff to the defendants, terminating the tenancy, was not given according to law. A yet another contention of defendant No. 2 is that the plaintiff does not reasonably and bona fide need the suit property for his personal occupation and on this ground also he (plaintiff) is not entitled to recover possession of this property from the defendants. Defendant No. 2 contends that pursuant to the provisions of the explanation to Section 13 of the Rent Act, the plaintiff cannot claim the status of a landlord. It is upon these contentions that the plaintiff's suit is resisted by defendant No. 2.

6. The learned Judge, who heard and decided the suit, came to the conclusion, upon the evidence before him, that the plaintiff had proved his title to the suit property. The learned Judge, relying upon the sale-deed dated June 16, 1947, passed by Devarukhkar in favour of the plaintiff, held that the plaintiff was the owner of the suit property. Then the learned Judge held that defendant No. 1 was the tenant of Devarukhkar to start with and thereafter he was the plaintiff's tenant and so far as defendant No. 2 was concerned, be was a member of the tenant's family. Consistently with this view of the matter which the learned Judge took, he held that it was not necessary for the plaintiff to give to defendant No. 2 a legal notice to quit. According to the view of the learned Judge, the notice which was given by the plaintiff to defendant No. 1 was a sufficient legal notice. Then, on another question of fact also, the learned Judge decided in favour of the plaintiff and that was that the learned Judge held that the plaintiff reasonably and bona fide required the suit property for his personal occupation. So far as defendant No. 2's claim of title to the suit property was concerned, the learned Judge held that defendant No. 2 had failed to prove it. All these questions are questions of fact and it is not open to this Court, in second appeal, to go into these questions of fact. The learned Judge of the lower appellate Court went carefully and exhaustively through all the evidence which was pertinent to these questions of fact and, having done so, he came to the conclusion that all these questions of fact were rightly answered by the learned Judge of the trial Court. We must, therefore, accept those findings, viz. that the plaintiff has proved his ownership, of the suit property, that the plaintiff reasonably and bona fide requires the suit property for his personal occupation and that defendant No. 2 has failed to prove his title to the suit property. The learned Judge of the trial Court had further come to the conclusion that Devarukhkar's possession of the suit property had already become adverse and that upon that ground also defendant No. 2's contentions deserved to fail. Upon this question of fact also the learned Assistant Judge in appeal agreed with the view of the learned trial Judge. It would not be open to us in second appeal to go into that aspect of the case as well. 'We must also accept the finding that Devarukhkar's possession of the suit property had already become adverse before the property was sold by Devarukhkar to the plaintiff on June 16, 1947.

7. The learned advocate Mr. Abhyankar appearing for the appellants-defendants Nos. 1 and 2 frankly realises the position that upon all these questions of fact mentioned above, the findings of the learned Assistant Judge in appeal are conclusive and it would not be open to this Court in second appeal to disturb those findings. He has, therefore, confined himself to the issue of law. Now, the issue of law is issue No. 5 out of the issues framed by the learned Assistant Judge. Issue No. 5 as framed by the learned Assistant Judge reads:

Is the plaintiff entitled to possession as a landlord of the defendants in view of the explanation to Section 13(2) of the Bombay Rent Control Act which is deleted by the amendment of the Rent Act during the pendency of the appeal?

The learned Assistant Judge found this issue in favour of the plaintiff and held that in view of the fact that the explanation to Section 13(2) of the Rent Control Act as it originally stood was deleted by the Amending Act No. LXI of 1953, the plaintiff was entitled to claim possession of the suit property as being a landlord of the defendants. It is this view of the learned Assistant Judge which is challenged by Mr. Abhyankar for defendants Nos. 1 and 2 in the present appeal.

8. Mr. Abhyankar says that when the suit of the plaintiff was filed-and it was filed on April 24, 1948-the explanation to Sub-section (2) of Section 13 of the Rent Control Act as it originally stood was in force. Now, this was how the explanation to Sub-section (2) of Section 13 as it originally stood read:

For the purposes of Clause (g) of Sub-section (1), a person shall not be deemed to be a landlord unless he has acquired his interest in the premises at a date prior to the beginning of the tenancy, or the first day of January 1947, whichever is later or, if the interest has devolved on him by inheritance or succession, his predecessor-in-title had acquired the interest at a date prior to the beginning of the tenancy, or the first day of January 1947, whichever is later.

9. Now, Mr. Abhyankar says, and he says quite rightly, that the interest of the plaintiff was acquired in the suit property on June 16, 1947, by virtue of the sale-deed which was passed in his favour by Devarukhkar. Therefore, relying on the above-mentioned explanation to Section 13(2) of the Rent Control Act, Mr. Abhyankar says that the plaintiff shall not be deemed to be a landlord in respect of the suit property. Consistently with this submission of Mr. Abhyankar, he says that since the plaintiff shall not be deemed to be a landlord of the defendants, he shall not be entitled to claim possession of the suit property from the defendants.

10. Now, it is to be noted that by the Amending Act No. LXI of 1953 (Sub-section (2) of Section 9 of the Amending Act), Clause (a) and the proviso in the explanation below Sub-section (2) were deleted ; and the effect of the deletion was that, although a person claiming to be a landlord may have acquired his interest in the premises after January 1, 1947, even so he could be deemed to be a landlord.

11. Now, the question in this appeal is : what is the effect of the Amending Act No. LXI of 1953 upon the explanation below Sub-section (2) of Section 13 of the Rent Control Act Having heard Mr. Abhyankar at considerable length on this point, we have come to the conclusion that the Amending Act introduced a change in the provisions of Sub-section (2) of Section 13 of the Rent Control Act. As soon as the change was introduced, the Amending Act finished itself. Its purpose was served out. The Amending Act had no independent existence and, therefore, what was done by the Amending Act must relate back to the date when the orginal Act was passed. It is settled upon authority that the amending1 statute must be taken to have been written with the same ink and pen with which the original statute was passed. This is the same thing as to say that so far as the provisions of this amending Act are concerned they must relate back to the date upon which the original statute was passed. In the case of Shamrao Parulekar v. State of Bombay : (1952)54BOMLR877 , which was decided by five learned Judges of the Supreme Court, the learned Chief Justice Patanjali Sastri, Mr. Justice Mahajan, Mr. Justice Mukherjea, Mr. Justice Das and Mr. Justice Bose, the question of construction of the amended Act was considered, and it was held that the construction of an Act which had been amended was governed by technical rules and the rule was that, when a subsequent Act amended an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier Act, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with the same pen and ink and the old words scored out so that thereafter there was no need to refer to the Amending Act at all. Their Lordships pointed out that this was the rule in England. Bearing this rule in mind, said their Lordships, it would be seen that the Act of 1950, which came up for construction in that case, remained the Act of 1950 all the way through even with its subsequent amendments. Therefore, observed their Lordships, the moment the Act of 1952, which also came up for construction in that case, was passed and Section 2 came into operation, the Act of 1950 meant the Act of 1950 as amended by Section 2, that is to say, the Act of 1950 due to expire on October 1, 1952.

12. Then again, in the ease of Keshoram Poddar v. Nundo Lal Mallick (1927) 54 I.A. 152 : S.C. 29 Bom. L, the Calcutta Rent Act, 1920, came up for construction. The said Act enabled a landlord or tenant of premises in Calcutta to obtain from the Controller appointed under the Act a certification of the standard rent of the premises, with a right to apply for revision of his order to the President of the Calcutta Improvement Tribunal. By Sub-section (4) of Section 1, the Act was to 'be in force for a period of three years.' For these words an amending Act of 1923 substituted the words 'until the end of March, 1924.' A further amending Act of 1924 substituted '1927' for '1924' and provided that, after the words 'until the end of March, 1927,' there should be inserted:

provided that after March 31, 1924, this Act shall cease to apply to any premises the rent of which exceeds Rs. 250 a month..

The appellant in that case, who was a tenant of premises of which the rent exceeded Rs. 250, applied in November, 1922, to the President of the Calcutta Improvement Tribunal to revise an order certifying the standard rent, but the application had not been heard by March 31, 1924, It was held by their Lordships of the Privy Council that upon the true construction of the Act as amended, the appellant was entitled to have his application for revision heard and determined by the President, whose decision would be final under the Act. In, the body of the judgment of the Judicial Committee delivered by Viscount Dunedin, his Lordship observed (p. 155):

.The Act is the Act of 1920. It was a temporary Act and would have expired in three years from its inception, but by subsequent amendments its life was prolonged until March 31, 1924. It was, therefore, a living Act at the moment of the application to the President. Then there is the, proviso. The, view taken by the learned judges is that the effect of the proviso is to make the Act a temporary Act ending at March, 1924, as regards the higher valued premises, but an existing Act until 1927 as to other premises. Their Lordships think that this is an erroneous view. As above said, the Act of 1920 still lives until 1927. The effect of the proviso is just as if the words therein had been inserted in the original Act, and the Act must be so read at the present time.

The important words, with great respect, are the words 'the effect of the proviso is just as if the words therein had been inserted in the original Act, and the Act must be so read at the present time.' This is the same thing as saying that the words of the proviso must be taken to have been written with the same ink and the same pen with which the original Act was written.

13. In Hutchison v. Jauncey [1950] 1 k.b. 574 the tenant of a house within the protection of the Rent Restriction Acts sub-let, in October 1945, two rooms in it, sharing the use of the scullery for cooking with the sub-tenant. The sub-tenant subsequently bought the house subject to the tenancy, and in his capacity as landlord he served a valid notice to quit on the tenant expiring on April 25, 1949, and, on the tenant's refusing to comply with it, on May 25, he issued a plaint claiming possession. On that date as tie law then stood, the tenancy was not within the protection of the Rent Restriction Acts owing to the sharing of the use of the scullery. On June 2, 1949, that is to say, after the issue of a plaint, the Landlord and Tenant (Rent Control) Act, 1949, came into force. By Sections 7, 8 and 9 of the said Act, the protection of the Rent Restrictions Act was extended to the various eases where the tenant 'shared' occupation with others, and by Section 10 it was provided that those three sections:

shall apply whether the letting in question began before or after the commencement of this Act, but not so as to affect rent in respect of any period before the commencement thereof or anything done or omitted during any such period.

The case was heard on July 22, 1949, and upon that date the county court Judge, applying the rule enunciated in Trout v. Hunter [1924] 2 K.B. 736, held that the law applicable was the law applicable at the date of the issue of the plaint and made an order for possession. The tenant appealed, and in appeal Evershed M.R. said (P. 579):

The question, therefore, really is : since a summons had been Issued before the Act came into force, did the landlord acquire rights pursuant to the law as it stood before the Act was passed, and are those rights unaffected either by the express language of or by the necessary implication to be drawn from Sections 9 and 10 of the Act of 1949?

I have already mentioned above that the Landlord and Tenant (Rent Control) Act, 1949, came into force on June 2, 1949. The question which was posed by Evershed M.R. was answered by him in these words (p. 583):

.Differing, therefore, as I do with diffidence, from the county court judge upon any matter in which county court judges are so peculiarly experienced, I have come to the conclusion here that he wrongly applied the principle of Prout v. Hunter and the other cases, and that the right answer is that this Act retrospectively applies to protect and save the tenant in this case.

14. Then again, in Lachmeshwar Prasad v. Keshivar Lal [1924] 2 K.B. 736, the learned Judges of the Federal Court held that in deciding an appeal involving a question of money-lending in Bihar, the Federal Court was entitled to and should apply Section 7 of the Bihar Money-Lenders Act (VII of 1939), although the said Act might have been passed after the decision appealed from was given, because the Federal Court had to substitute a judgment which the High Court should have had to pass if it were then hearing the case and the High Court would be bound to apply Section 7. The learned Judges referred to the case of Patterson v. Alabama (1935) 294 U.S. 600 : 79 Law ed. 1082 in which the learned Chief Justice Hughes had made these observations:

We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.

The view which was taken in Patterson v. State of Alabama was re-affirmed by the Court in a subsequent case Minnesota v. National Tea Co (1940) 309 U.S. 551 : 84 Law ed. It was, therefore, clear that upon a question of construction of a statute which has been amended, the Courts in England and United States have consistently taken the view that in determining what justice does require, the Court is bound to take into consideration any change either in fact or in law which might have supervened since the pronouncement of the judgment by the Court below, that is to say, even at the stage of the appeal.

15. In Sunderji Vithaldas v. C.L. Sheshau (1949) Civil Revision Application No. 16 of 1949, which was decided by the learned Chief Justice on April 1, 1949, the question of construing an ordinance which was passed after the judgment was delivered by the Small Cause Court Judge, but before the revision, was considered. It was a revision application by the plaintiff, and the plaintiff's contention was that he needed the premises reasonably and bona fide. The learned Small Cause Court Judge accepted the plaintiff's contention. Nevertheless, the learned Judge came to the conclusion that on a consideration of the balance of convenience, the balance was in favour of the tenant, and he, therefore, dismissed the plaintiff's suit. After this judgment was delivered by the Small Cause Court Judge, a Full Bench of the Bombay High Court held that the new Rent Act was retrospective only in a limited sense and that the new Act was not applicable to the cases which had been filed in the Small Cause Court at the date when the old Act was in force. In view of this position, the plaintiff filed a revision application from the order of the Small Cause Court Judge. The said revision application was admitted by Mr. Justice Jahagirdar. It was admitted on January 7, 1949. Thereafter, on February 3, 1949, the Government of Bombay passed an Ordinance, being Ordinance No. 1 of 1949. That ordinance provided that no order or decree passed between February 13, 1948, and the date upon which the ordinance came into force, i.e. February 3, 1949, could be questioned only on the ground that the suit or proceedings should have been decided and disposed of in accordance with the provisions of the new Act and not in accordance with the provisions of the old Act or vice versa. Therefore, when the plaintiff's revision application, came up for hearing before the learned Chief Justice, what the plaintiff was attempting to do was to question the order passed by the learned Small Cause Court Judge upon the ground that the learned Judge should not have passed such an order under the new Act, but that he should have passed the order under the old Act. The learned advocate Mr. Maniar, who was appearing for the plaintiff, contended in that revision application that Section 4 of the Ordinance could not affect his client's vested right which had come into existence by reason of the admission of his client's revision application. Mr. Maniar's contention was that when the revision application of his, client was admitted, there was no Ordinance and Mr. Maniar said that, but for the Ordinance, the revision application would have succeeded. In dealing with this contention, the learned Chief Justice said that what he had to consider was what the law was, not when the revision application was admitted, but what the law was on the day upon which the revision application was being decided by the learned Chief Justice. The learned Chief Justice took the view that there could be no doubt that as the law stood on the date on which the revision application came to be heard, the Court was precluded from questioning the order made by the learned Small Cause Court Judge upon the ground upon which Mr. Maniar for the plaintiff-applicant sought to challenge it. In other words, the learned Chief Justice took the view that the law which the Court was called upon to administer in that revision application was not the law as it stood at the date when the revision application was admitted, but the law as it obtained upon the date on which the application was being disposed of.

16. The effect of the abovementioned decisions is that, although Clause (a) and the proviso which occurred below Sub-section (2) of Section 13 of the Act were deleted by the Amending Act No. LXI of 1953, the effect of the deletion must relate back to the date upon which the original Act was passed, and once effect is given to this position in law, it must clearly follow that the plaintiff must be looked upon as a landlord of these premises, notwithstanding the fact that on January 1, 1947, he did not have any interest in these premises. As I have mentioned above, he purchased these premises on June 16, 1947.

17. Mr. Abhyankar for defendants Nos. 1 and 2 has invited our attention to a decision of a Division Bench of this Court in Harmanbhai Nathabhai Patel v. Mangal Shiva Kumbhar (1957) Civil Revision Application No. 18 of 1956. Harmanbhai Nathabhai v. Mangal Shiva was heard and decided by Mr. Justice Dixit and myself on January 17, 1957. The original plaintiffs were the applicants in that application and it was contended on their behalf that they were entitled to recover possession of the premises as, pending the litigation, the Bombay Rents, Hotel and Lodging House Rates, Control Act, 1947, was amended by Bombay Act LXI of 1953 and as the effect of the amendment was to delete the word 'residential' from Clause (i) of Sub-section (1) of Section 13 of the Act. Now, Clause (i) of Sub-section (1) of Section 13 of the Act as it stood before the amending Act of 1953 was passed by the Legislature, read:

where the premises are land, such land is reasonably and bona fide required by landlord for the erection of a new residential building.

By reason of the amendment, which was introduced by Act LXI of 1953, it was provided that Clause (i) of Sub-section (1) of Section 13 was to read:

where the premises are land, such land is reasonably and bona fide required by the landlord for the erection of a new building.

It is, therefore, clear that by reason of the amendment, the word 'residential' which occurred in Clause (i) as it originally stood was deleted and a question arose what effect should be given to the deletion. The view which was taken by this Court in that case was thus expressed by Mr. Justice Dixit and myself:

The general rule is that every legislation, which affects the rights of the party, is prospective and not restrospective. The effect of accepting the contention urged on behalf of the applicants is that to so hold we would be required to hold that Section 13, Sub-section (1), Clause (i), as amended, is retrospective and not prospective. But there is this difficulty in the way of the applicants, the difficulty being that the applicants would succeed only upon the basis that the applicants required the premises reasonably and bona fide for the erection of a new residential building.

This Court said that it had to look to the cause of action as it existed on the date of the suit and it was obvious in that case that the cause of action was founded upon the contention that the plaintiffs reasonably and bona fide required the premises for the erection of a new residential building. This Court in that revision application took the view that the plaintiffs had failed to show that they reasonably and bona fide required the premises for the erection of a new residential building and accordingly it dismissed the application. It is true that in that case Mr. Justice Dixit and myself took the view, which Mr. Abhyankar is contending for, in the present case. But the view which we took being not in consonance with the decision of the Supreme Court in Shamrao Parulekar v. State of Bombay we do not feel bound by it. We stated in that ease that the effect of accepting the contention which was pressed on behalf of the applicants was that we would be required to hold that Section 13, Sub-section (1), Clause (i) as amended was retrospective and we thought that to so hold would be contrary to the general rule of construction. As I have stated above, in Shamrao Parulekar v. State of Bombay, the learned Judges of the Supreme Court pointed out that the moment the Act of 1952 was passed and Section 2 came into operation, the Act of 1950 meant the Act of 1950 as amended by Section 2 of the Act of 1952. In other words, Section 2 of the Act of 1952 was given a retrospective effect. Moreover, the point which has precisely arisen for decision in the present case did not arise in Harmanbhai Nathabhai Patel v. Mangal Shiva Kumbhar, and, therefore, we were not called upon to consider the effect which an amending statute would have on the Act which is amended.

18. Mr. Abhyankar next invited our attention to a decision of this Court in Sudkya Ramji v. Mahammed Isak (1948) 52 Bom. L.R. 123. It was held by Mr. Justice Bavdekar and Mr. Justice Jahagirdar in that case that it was a general principle of the common law of England, which had been followed in India, that no statute should be construed so as to have a retrospective operation unless its language was such as plainly to require that construction. The learned Judges said that this meant that, when the effect of the adoption of what may be called the literal construction would be to take away a vested right, the Court would be slow to accept such a construction and would insist upon its being satisfied that that was the intention of the Legislature. It is to be noted, however, that the learned Judges in that case did not consider the effect which an amending Act would have on the provisions of the Act amended. That being so, the decision in that case would not be of much assistance to defendants Nos. 1 and 2 in the present appeal.

19. Mr. Abhyankar had no other point to press before us. The point of law which he has argued before us has not. impressed us for the reasons stated above. In out view, issue No. 5 of the issues framed by the learned Assistant Judge was correctly answered by him.

20. The result, therefore, is that the appeal must fail and be dismissed with costs.


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