1. These three petitions arise out of three suits instituted in the Court of the Munsiff, Viraipet, by the respondent who happens to be the landlord of the three petitioners for recovery of possession of the respective premises let out to each of the petitioners in these petitions and for recovery of arrears of rent and other reliefs. All the three suits were instituted on 17-6-1968. The respondent alleged in his plaints presented in the three suits that the petitioners were his tenants who had committed default in the payment of rent and that he had duly terminated their tenancies by issue of proper notices to quit as provided under the Transfer of Property Act. The petitioners in their written statement admitted that they were tenants under the respondent, but raised certain pleas with regard to the claim made by the respondent in the suits and prayed that the suits be dismissed. After the written statements were filed in all the suits, the court below framed issues and posted the cases for trial.
During the pendency of the suits in the court below, the provisions of Parts IV and V of the Mysore Rent Control Act, 1961 (hereinafter referred to as the Act) were made applicable to the area in which the premises leased out to the petitioners were situate by a notification bearing No. SO 869 dated 24-9-1969 issued by the Government of Mysore in exercise of its powers under Sub-section (5) of Section 2 of the Act. Part IV of the Act deals with provisions enabling a tenant to make deposit of rent into court and Part V of the Act relates to provisions in respect of control of eviction of tenants and obligations of landlords.. Section 21 of the Act which is to be' found in Part V reads:--
'21. Protection of tenants against eviction.-
(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant:
X X X'
The rest of the section sets out thegrounds on which alone a tenant couldbe evicted from a premises. After PartsIV and V of the Act were brought intoforce, the petitioners filed applicationsbefore the lower court under Order VI,Rule 17 of the Code of Civil Procedurefor amending their written statementsby raising an additional plea regardingthe jurisdiction of the court to proceedwith the suits on the coming into forceof Parts IV and V of the Act in thearea. The said applications having beenallowed, the court framed an additionalissue in each of the three suits as follows:--
'Whether the court has no territorial jurisdiction to try the suit for reasons stated in para 10 of the written statement?' Apparently what the court meant by framing the above issue was whether the court had on the coming into force of Parts IV and V of the Act jurisdiction to continue to try the suits which had already been instituted. In fact no question of territorial jurisdiction arose for consideration. After hearing the parties, the lower court passed orders holding that the suits for recovery of possession Instituted by the landlord against the tenants and which were pending on the date on which Parts IV and V of the Act came into force, could be proceeded with as if Parts IV and V of the Act had not come into force and that the notification had no retrospective effect. Aggrieved by the above finding given on the additional issue which was framed by the court below regarding its jurisdiction, the petitioners have filed these revision petitions under Section 115 of the Code of Civil Procedure.
2. 'When these cases came up before B. M. Kalagate, J. he ordered that these cases be heard by a Division Bench since they involved substantial question of law and that is how they are now before us,
3. The first question to be decided is whether these petitions are maintainable under Section 115 of the Code of Civil Procedure. As already stated these petitions are directed against a finding on one of the issues framed in the suits. It is not disputed that an appeal lies against a decree to be passed in the suits to the court of the Civil Judge and from the decree passed in appeal, to the High Court under Section 100 of the Code of Civil Procedure.
The question for consideration is whether in those circumstances, a petition under Section 115 of the Code of Civil Procedure is entertainable. The answer to this question is found in a decision of the Supreme Court in S. S. Khanna v. F. J. Dillon, : 4SCR409 . That case arose out of a suit in which the trial court had framed an issue as follows: 'Whether this suit is not maintainable and the plaintiff is not entitled to institute this suit, as alleged in Paras Nos. 15. 16. 17, 13 of the written statement?'
This issue was tried as a preliminary issue and it was held that the suit was not maintainable. The High Court of Punjab in exercise of its revisional jurisdiction set aside the order even though the decree of the trial court was appealable and directed that the suit should be disposed of according to law. The appeal before the Supreme Court was one filed against the order of the High Court interfering with the decision of the trial Court under Section 115 of the Code of Civil Procedure. The Supreme Court dismissed the appeal holding that in such cases where the issue decided involves question of jurisdiction; a revision petition under Section 115 of the Code of Civil Procedure would lie. Dealing with the said question, this is what the Supreme Court observed:--
'The words 'record of any case............decided' in this context refer to the record of the proceedings leading upto a decision in which there is an assumption of unwarranted jurisdiction or a denial of an existing one or a material irregularity or illegality in the exercise of jurisdiction. Where, however, an appeal lies from the final determination to itself or to another court, the High Court in the exercise of its discretion may decline to interfere at the interlocutory stage unless interference at the earlier stage tends to prevent irreparable injury or is otherwise manifestly just and expedient. Since decisions in most cases tried by the subordinate courts are subject to one or more appeals and one such appeal is to the High Court, and where there is no appeal there are special provisions giving even wider powers of interference to the High Court by way of revision than those under Section 115, the interpretation put by the Rajasthan High Court on the Section of the Code could make the power available in a remarkably small number of cases. This general power as shown above was intended to be used otherwise and the word 'case' does not mean a concluded 'suit' or proceeding but each decision which terminates a part of the controversy involving a matter of jurisdiction. Where no question of jurisdiction is involved the court's decision cannot be impugned under Section 115 for it has been said repeatedly a court has jurisdiction to decide wrongly as well as rightly.
In my opinion, the construction generally accepted in the High Courts is more in keeping with the letter and spirit of the section considered as a whole than the view accepted in the two cited cases. As I pointed out earlier, the section confers a power analogous to the power to issue a writ of certiorari but only with a view to keeping subordinate courts within the bounds of their jurisdiction. This power is exercisable in respect of all orders involving jurisdiction in which no appeal lies to the High Court. The present cases answer the description as the orders of the Subordinate Judge were erroneous in denying a jurisdiction and no appeal lay to the High Court against them. Even otherwise, the trial Judge was in error in not dismissing the suits. His decision that the suits were not maintainable and yet keeping them pending was itself an exercise of jurisdiction with a material irregularity. If the trial Judge had dismissed the suits and passed decrees there would undoubtedly have been appeals and no revision would have lain. But the order actually passed by him was not a decree or even an order made appealable by Section 104 of the Code. Involving as it did a clear question of jurisdiction it was revisable and the High Court was within its rights in correcting it by the exercise of its powers under Section 115 of the Code.'
It is to be seen in these cases, that the trial court has held that it has jurisdiction to try the suits. But since the other issues have not been disposed of, no decree has been passed in these suits one way or the other. Hence, the petitioners were unable to take up the matters in appeal. We feel therefore in view of what the Supreme Court has stated that in cases of the type we have before us where issues which involve question of jurisdiction are disposed of and no decree has been drawn up, a revision petition would lie to the High Court against the findings on such issues under Section 115 of the Code of Civil Procedure.
4. The next question for decision is one relating to the effect of the bringing into force of Parts IV and V of the Act in the area in which the suit premises are situate on the proceedings already instituted and pending on the date on which the said provisions are brought into force.
5. Ordinarily a litigant who institutes a suit in a court acquires a vested right to prosecute the suit before the court in which it is instituted till a decision is given by that court and if allowed by law to file an appeal and a second appeal to the Courts duly constituted for that purpose. That he could do so is beyond doubt even when by a legislative enactment brought into force during the pendency of such proceedings it is provided that cases similar to the said pending cases should be instituted in a different forum, unless the law which has brought about that change has either expressly or by necessary implication taken away the jurisdiction of the courts of first instance or of appeal, to hear and dispose of pending cases after the new law comes into force. If the new law which has brought about the change regarding the courts which should hear and dispose of the cases either expressly or by necessary implication does not take away the jurisdiction of the courts before which the proceedings have already been commenced, the only reasonable view to be taken is that the proceedings instituted earlier would go on as if the new law has not come into force at all and that the new law would govern only those proceedings which are commenced after it has come into force. This view of ours does not also derogate from the rule of statutory construction that the law relating to procedure in regard to the conduct of cases should ordinarily be held to be retrospective for the reasons that an amending law which alters the forum and abridges existing rights of appeal is not merely a procedural law.
The above view receives support from the observations of the Supreme Court in Garikapati Veeraya v. Subbiah Choudhary, : 1SCR488 , in which their Lordships were dealing with a case in which the question was whether a person who was a party to a suit which was instituted prior to the coming into force of the Constitution of India had a right to prefer an appeal to the Supreme Court even though the value of the suit in the court of first instance and still in appeal before the Supreme Court was less than Rs. 20,000/- but above Rs. 10,000/-. The contention of the appellant in that case was that by virtue of Sections 109 and 110 of the Code of Civil Procedure as it stood in the year 1949 when the suit was instituted, he had acquired a right to prefer an appeal to the Federal Court whose jurisdiction had been transferred to the Supreme Court of India and that he had not lost that right on account of the amendment of the provisions of Sections 109 and 110 of the Code of Civil Procedure and the enactment of Article 133(1)(a) of the Constitution. The Supreme Court in that case upheld the contention of the appellant holding that there was no express provision either in the Constitution of India or the Code of Civil Procedure taking away the right of appeal which the appellant had acquired when the suit was instituted. They observed:--
'From the decisions cited, above the following principles clearly emerge:
(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of the suit carried with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior Court accrued to the litigant and exist as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.'
To us it appears that even though the Supreme Court was dealing in the above case with the right of appeal of a litigant, the observations made therein apply with equal force to the proceedings which are pending in the court of first instance. To hold otherwise would amount to taking away the right of appeal which the litigants acquired on the institution of the proceedings in the Court of first instance.
6. It was urged on behalf of the petitioners that even though there were no express words in the Act taking away the jurisdiction of the court to dispose of pending cases in which the landlord was seeking the eviction of the tenant. Section 21 of the Act by necessary implication took away that jurisdiction. Reliance was placed on the language of Section 21 of the Act which is extracted already above. It was contended that since Section 21 (1) provided that notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises should be made by any court or authority in favour of the landlord against the tenant, it should be assumed that all courts lost jurisdiction to try and dispose of such cases. It was contended that the 'expression 'any court or other authority' found in Section 21 (1) of the Act referred to all courts and authorities other than the court defined in Section 3 (d) of the Act and the expression 'court' in the proviso to Section 21 (1) should be read as one defined hi Section 3 (d) of the Act. It was argued on that basis that no decree can be passed by a Civil Court other than the one designated by Section 3 (d) of the Act after the coming into force of Part V of the Act in any area and, therefore, even the pending cases cannot be proceeded with.
Section 3 (d) of the Act defines that unless the context otherwise requires, 'Court' means in respect of any local area, any civil court which may be specially authorised by the State Government by notification in this behalf, or where no civil court is so authorised, (i) the court of the civil Judge (Junior Division) in the Bombay Area, (ii) the Court of the District Munsiff in the Madras Area, and (iii) the Court of the Munsiff in Coorg District, Hyderabad Area and Mysore Area, having territorial jurisdiction in such area. (Now all these courts are called courts of Munsiff's).
We do not find that there is tenable reason to hold that in the context of Section 21 (1) of the Act, the word 'Court' in the expression 'any court or other authority' does not include a court within the meaning of Section 3 (d) of the Act. Section 21 (2) of the Act only means that no court or other authority entrusted with the jurisdiction to try cases in which a landlord is seeking to evict his tenant can make an order in favour of the landlord unless he is able to bring his case under one or more of the grounds mentioned in the proviso to Section 21 (1) of the Act. It is unnecessary for us to express any opinion at this stage whether the expression 'court' in Section 21 (1) of the Act also includes courts in which suits for eviction of tenants are pending on the date of the extension of Part V of the Act. But it is clear that Section 21 (1) of the Act does not bar further proceedings in such pending suits going on in those courts.
7. It was next urged that the Act was one which was enacted in order to confer certain benefits upon tenants, and, therefore, Section 21 (1) of the Act must be construed as having retrospective effect even on cases which had been instituted before the extension of the Act to any particular area. It was also argued that the tenants must have the protection of either the Act or some other Act which had been repealed by Section 62 of the Act and in the instant case since no law protecting the tenants similar to the Act or Acts repealed was in force in the area in question, it should be held that on the extension of Parts IV and V of the Act to the said area, the benefits of the Act should be made available to the tenants. It was next contended that Section 21 of the Act should be read as an amendment to the existing law governing the landlords and tenants and that since it had been provided by it that no order or decree for recovery of possession of any premises should be made by any court in favour of the landlord against the tenant, except on the grounds mentioned therein, all courts before which such cases were pending should apply Section 21 (1) of the Act to those cases while passing the decree even though they had been instituted before Part V of the Act came into force in that area. It is not necessary for us to express any opinion on these questions at this stage for the said questions are not before us. We are only concerned with the question whether the proceedings pending on the date of the extension of Parts IV and V of the Act to the Area in question, can be continued in the court in which they had been instituted, even after such extension.
8. The learned counsel for the petitioners however relied on some of the decisions in support of the contentions that Section 21 of the Act was retrospective and it took away the jurisdiction of the Courts to try matters pending before them at the tune of the extension of the Act if in those proceedings eviction of tenants was sought.
The first decision on which reliance was placed was the one reported in H. V. Rajsn v. C. N. Gopal, AIR 1961 Mys 29. That was a case in which the question for determination arose in the context of the Mysore House Rent and Accommodation Control Act (30 of 1951). It was observed in that case that the tenant whose tenancy had commenced in 1941 and had come to an end by efflux of time in February 1947 should be deemed to be a statutory 'tenant under the Mysore House Rent and Accommodation Control Act, 1951, and that his eviction could be effected only in accordance with the provisions of that Act. It was further held that the provisions governing the tenancy in that Act were retrospective in effect and that they ousted the jurisdiction of the civil courts altogether. That case however was governed by the language of the Mysore House Rent and Accommodation Control Act, 1951, It has no bearing on the present question whether Section 21 of the Act ousted the jurisdiction of the civil Courts or not.
9. The next decision is of this Court in Diesel (India) v. Mysore Arts & Woods Works (P) Ltd., C. R P. No. 1159 of 1962 decided on 11-1-1963 (Mys). This decision no doubt supports the case of the petitioners. In that case it was held that by Section 21 of the Act the jurisdiction of the Civil Courts to try cases pending before them on coming into force of the Act was taken away. In the course of that order the court relied upon the decision of the Supreme Court in Shah Bhojral Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, : 2SCR159 , ' which was tendered in a case which arose from the state of Bombay. In that case, one of the questions for consideration before the court, no doubt, was whether on the extension of Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, to the area within which the premises in question was situate the Court of the Joint Civil Judge (Junior Division), Eradol, lost jurisdiction to try the suit for recovery of possession filed by the landlord against the tenant which was pending on the date of the extension of Part II. It may be appropriate to mention here that the Bombay Act contained a provision requiring the transfer of all pending proceedings on the date of the extension of that Act to the Courts which had the jurisdiction to try such suits and if the Court in which such suits were pending itself had jurisdiction, to continue to try those suits and further providing that all the provisions of that Act and the Rules made thereunder should apply to all such suits and proceedings. The relevant parts of the said Act, namely, the first proviso to Section 50 and Section 12 (1) are set out below (omitting unnecessary portions):
'Provided that all suits and proceedings between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part II apply .....which are pending in any court, shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under this Act or shall be. continued in such courts, as the case may be, and all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings.' Section 12 (1) of the Bombay Act read as follows:-- '12(1). A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy in so far as they are consistent with the provisions of this Act.'
The Supreme Court had on an earlier occasion held that Sub-sections (2) and (3) of Section 12 of the Bombay Act were clearly prospective and were applicable to suits instituted after the coming into force of the Bombay Act. But in the decision referred to above it held:--
'But a section may be prospective in some parts and retrospective in other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation, if the intention of the legislature is apparent. This is more so, when Acts are passed to protect the public against some evil or abuse. (See Craies on Statute Law, 5th Edition, p. 365).
The Sub-section says that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the standard rent etc., and observes and performs the other conditions of the tenancy. In other words, no decree can be passed granting possession to the landlord, if the tenant fulfils the conditions above mentioned. The explanation to Section 12 makes it clear that the tenant in case of a dispute may make an application to the court under Sub-section (3) of Section 11 for fixation of a standard rent and may thereafter pay or tender the amount of rent or permitted increases specified in the order to be made by the court. The tenants, in the present case, have expressed their readiness and willingness to pay, and it is clear that they fulfil the requirements of Sub-section (1) of Section 12, and the landlord is, therefore, not entitled to the relief of possession.
Both the High Court as well as this court in their previous decisions referred to above, were not called upon to interpret Sub-section (1) of the Act. They were dealing with appeals arising out of decrees already passed. The observations that Section 12 was prospective were made with reference to Sub-sections (2) arid (3) and not With respect to Sub-section (1), which did not even find a mention in those judgments. The Question then was whether Section 12 by itself or read with the proviso to Section 50 was applicable retrospectively to appeals. That is not the question which has arisen here. Then again Section 12 (1) enacts that the landlord shall not be entitled' to recover possession, not 'no suit shall be instituted by the landlord to recover possession'. The point of time when the sub-section will operate is when the decree for recovery of possession would have to be passed. Thus the language of sub-section applies equally to suits pending when Part II comes into force and those to be filed subsequently. The contention of the respondent that the operation of Section 12 (1) is limited to suits filed after the Act comes into force in a particular area cannot be accepted. The conclusion must follow that the present suit cannot be decreed in favour of the respondent. The decisions of the High Court and the court of first instance are thus erroneous, and must be set aside.' It is clear from the above decision that what the Supreme Court decided in the above case was whether Sub-section (1) of Section 12 of the Bombay Act was retrospective or not. It did not actually decide whether pending cases in a court filed prior to the extension of the Borabay Act could not be proceeded with in that court. In C. R. P. No. 1159 of 1962 (Mys) the existence of the first proviso to Section 50 of the Bombay Act which provided for the transfer of pending proceedings to other courts having jurisdiction also appears to have been overlooked. Therefore, with great respect to the learned Judge who decided the case, we hold that the judgment in C. K. P. No. 1159 of 1962 (Mys) does not lay down the correct view. The next decision relied on by the petitioners is one in Situ Hengsu v. Kamala Bai, Ex. Second Appeal No. 100 of 1966 (Mys) in which the question involved was about the executability of a decree for eviction of a tenant after the coming into force of the Act. The question before the Court in that case, therefore, was about the efficacy of the decree that had been passed earlier by a Court after coming into force of the Act, but not whether a Court before which a case was pending between landlord and tenant for recovery of possession could be proceeded with or not on the corning into force of the Act. It is no doubt true it had been observed in that case that Section 21 of the Act ousted the jurisdiction of the Civil Court to try cases. That question however was outside the scope of the execution second appeal.
10. On the other hand, we have a ruling of a Division Bench of this Court (of which one of us was a member) in Bheemappa Hanumanthappa v. Nagaraj, (1966) 1 Mys LJ 664, in which it has been held that Section 21 of the Act is not retrospective and it does not take away the rights already vested in the parties. The question which arose for determination in that case was whether after the Act came into force proceedings could be taken under the repealed Bombay Rents. Hotel and Lodging House Rates Control Act, 1947, in respect of certain rights which had accrued under that Act. After considering in detail the several decisions bearing on the point which were cited at the Bar, the Court came to the conclusion that the rights and liabilities which had accrued under the Bombay Act could be enforced as if the repealing Act had not been passed.
11. In another decision of this Court rendered by Govind Bhat, J. in Parvathi Bai v. Damodar Anant Hegde, 1965-1 Mys LJ 100, the question for consideration was whether an appeal filed against a decree obtained by a landlord against a tenant which was pending in the Court of the District Judge, North Kanara, could be proceeded with after the Act came into force. The Court held:--
'......On an examination of the scheme of the Act and its provisions referred to above, I am of the opinion that the Act which came into operation during the pendency of the appeals, does not govern the rights of the parties to the appeal and that their rights have to be decided according to law as is existed when the action was begun; there is no deal' intention in the statute to vary such rights. In this view of the law, the order of remand made by the court below resting on an erroneous view of the law cannot be sustained. Therefore, it has to be set aside and the Court below should be directed to dispose of the appeal in accordance with law without reference to the provisions of the Act.'
Reference may also be made to a decision of this Court in Narasimha Jogithaya v. Bora Gowda (1959) 37 Mys LJ 107. The question for determination in that case was whether an appeal pending in an appellate court against a decree passed in a suit between a landlord and a cultivating tenant within the meaning of the Madras Cultivating Tenants Protection Act (25 of 1955), stood transferred to the Revenue Divisional Officer in view of the provisions of Section 6A of the said Act which reads as follows:--
'6-A. Transfer of certain suits to the Revenue Divisional Officer by Civil Courts:-- If in any suit before any Court for possession of, or injunction in relation to, any land, it is proved by affidavit or otherwise that the defendant is cultivating tenant entitled to the benefits of this Act, the court shall not proceed with the trial of the suit but shall transfer it to the Revenue Divisional Officer who shall thereupon deal with and dispose of it as though it were an application under this Act and all the provisions of this Act shall apply to such an application and the applicant'
It was held by this Court In the above case that Section 6A of the Madras Act provided for the transfer of only the suits pending in the Court of first instance to the Revenue Divisional Officer, but did not provide for the transfer of appeals which were pending in appellate courts It may be mentioned here that in the Act with which we are now concerned, there is no provision for transfer of cases instituted prior to the coming into force of the Act to any other court or authority. The result of accepting the argument of the petitioners would be to put a stop to all proceedings which had been commenced prior to the coming into force of the Act in any area irrespective of the fact whether they are pending in the trial court or in the appellate courts without a final decision being rendered in those proceedings. We do not think that the legislature intended such a result. If the legislature really intended that those proceedings should be tried by the courts and authorities under the Act, they would have specifically made an express provision therefor as we find in the first proviso to Section 50 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which came up for consideration before the Supreme Court in Shah Bhojraj Kuverji Oil Mills and Ginning Factory's case, : 2SCR159 , or in section 6A of the Madras Cultivating Tenants Protection Act (25 of 1955). We therefore, hold that the proceedings which are instituted and pending in courts prior to the extension of Parts IV and V of the Act to the area within which the premises are situate, can be proceeded with in those courts and appeals can be filed against orders or, decrees passed in those proceedings be-fore courts having the power to hear appeals from those orders and decrees, as if Parts IV and V of the Act have not been extended to the area.
12. We, however, make it clear that we have not gone into the question whether Section 21 of the Act can be taken into consideration by the court while making a decree in such pending suits. That question is left open.
13. In the result, these revision petitions fail and they are dismissed. No costs.