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Krishna Chandra Misra Vs. Sushila Mitra - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberA.F.A.O. No. 42 of 1948
Judge
Reported inAIR1951Ori105; 16(1950)CLT249
ActsOrissa House Rent Control Act, 1947 - Sections 1(4), 5 , 13, 20 and 21; Code of Civil Procedure (CPC) 1908 - Sections 100 and 107 - Order 41, Rules 27 and 33; Orissa House Rent Control Ordinance, 1946 - Sections 13 and 18; Orissa House Rent Control Order, 1942 - Sections 4; Constitution Law
AppellantKrishna Chandra Misra
RespondentSushila Mitra
Appellant AdvocateB.N. Das, ;M.S. Rao, ;G.B. Mohanty, ;S.C. Chakrabarty and ;R.K. Das, Advs.
Respondent AdvocateL.K. Das Gupta, Adv.
Cases ReferredBrown & Co. v. V. T. J. Harrison
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....das, j.1. this appeal arises in execution of a decree for ejectment obtained by the respondent against the appellant, in respect of a house situated in the town of cuttack. the respondent is admittedly the owner of the house. the appellant was occupying the house on a monthly tenancy under her. during the time when the house rent control order of 1942 was in force, she obtained from the house controller, an order dated 15-8 44 exempting her from the operation of b. 4 thereof. on 13-9-44, she gave the tenant a notice, requiring him to vacate the premises by 1-1044 and also calling upon him to pay up the arrear.3 of rent by then due. she filed a suit for ejectment o. s. no. 71/45 on 26-2-1945 and obtained a decree on 17-12-1945. she proceeded to execute the decree by execution case no......
Judgment:

Das, J.

1. This appeal arises in execution of a decree for ejectment obtained by the respondent against the appellant, in respect of a house situated in the town of Cuttack. The respondent is admittedly the owner of the house. The appellant was occupying the house on a monthly tenancy under her. During the time when the House Rent Control Order of 1942 was in force, she obtained from the House Controller, an order dated 15-8 44 exempting her from the operation of B. 4 thereof. On 13-9-44, she gave the tenant a notice, requiring him to vacate the premises by 1-1044 and also calling upon him to pay up the arrear.3 of rent by then due. She filed a suit for ejectment O. S. No. 71/45 on 26-2-1945 and obtained a decree on 17-12-1945. She proceeded to execute the decree by execution case no. 230/46 filed on 30.4.1946 which was adjourned from time to time by arrangement between the parties and was ultimately dismissed for default on 7-5-1917. On 10-5-1917, the decree-holder respondent filed a fresh execution case, namely, E. C. No. 247/47.Tb.e judgment-debtor raised the objection that without a permission in writing by the Rent Controller cinder Schedule 3, House Rent Control Act of 1947, for the filing of the execution proceedings the game was incompetent. This objection wag overruled by both the lower Courts and hence this appeal by the appellant judgment-debtor.

2. As already mentioned, at the date when the respondent obtained the order of exemption, dated 15-3-1944, and took further steps based thereon, and obtained her decree for ejectment on 17-12-1945, it was the House Rent Control Order of 1942 that was in force. This was superseded by the House Rent Control Ordinance of 1946, which came into operation on 30-9-1946. This, in turn, was repealed by the House Rent Control Act of 1947, which came into operation on 21-3-1947. It is not disputed that these various statutory enactments relating to house rent control were successively in force in the town of Cuttack without a break. The Ordinance and the Act re-enacted all the provisions of the House Rent Control Order with certain additions and modifications. One of such additions is the present Schedule 3, House Rent Control Act which finds a place in the Hou3e Rent Control Ordinance of 1946 as well as in the Act of 1947. This new section was not in operation by the time the 1st E. C. No. 230/46 was filed on 30-4-1946, but came into operation by the time the second E C. no. 217/ 47, was filed on 10-5-1947. It is accordingly contended by learned counsel for the appellant that the present execution application is incompetent.

3. In the course of the arguments on this question, it has been brought to our notice that the original term of three years of the House Rent Control Act of 1947 had expired by 21-3-1950, and that the life of the Act purports to have been extended for one year with effect from that date by Government Noffn. no. 2080-Dev., dated 25-2-1950. This notification was issued in exercise of the power of the Provincial Government under Sub-section (4) of S.1, House Rent Control Act which provides that:

'The Provincial Government may, from time to time, by notification extend the continuance of this Act for a further period or periods not exceeding in the aggregate two years, it in their opinion it is expedient so to do.'

The recent decision of the Federal Court reported in Jatindra Nath v. Province of Bihar,1949 F. L. J. 225 : (A, I. R. (36) 1949 F. C. 175 : 5O Cr. L. J. 897), has been brought to our notice in which it has been held that such a power of extension of the life of an Act by a notification by Government is ultra vires the Provincial Legislature. The question has accordingly been raised that the House Rent Control Act of 1947 is no longer validly in force to enable the appellant to rely on the same. As this raised a serious question relating to the valid continuance in operation of the House Rent Control Act of 1947, we issued notice to the Advocate-General to find out whether the life of the Act had been extended by any fresh Act, or whether it has been purported to be extended only by the notification above-mentioned and if so, how he would maintain the validity of the said notification. The Advocate-General has appeared on notice, and has informed us that the life of the Act has been sought to be extended only by this notification and not by any fresh legislation. He contended, however, that the notification was valid having regard to the terms of Sub-section (4) of Schedule , House Rent Control Act of 1947, and that the decision of the Federal Court above cited in so far as it relates to the validity of such a clause giving power of extension to Government by notification is obiter and not binding on this Court. We have care. fully and anxiously considered the matter but it seems to us that in the face of the clear decision of the Federal Court on this question, it is not open to us to treat it as a mere obiter dictum.

4. In Jatindra Nath v. Province of Bihar, 1949 F. L. J. 225 at p. 227 : (A I. R. (36) 1949 F. C.175: 50 Or. L. J. 897) the question arose in the following circumstances. The Bihar Maintenance of Public Order Act of 1947 came into force on 16-3-1947 by Sub-section (3) of Section 1 thereof. Its operation was limited to one year from the data of its commencement with a proviso that:

'The Provincial Government may by a notification on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council direct that the Act shall remain in force for a further period of one year, with such modifications, if any, as may be specified in the notifications.'

On 11-3-1948, after the resolution of both the Houses, the Government issued a notification extending the life of the Act for one year from 16-3-1948 to 16-3-1949. By Bihar Act, v [5] of 1949, which came into force on 15-3-1949, in subs. (3) of Schedule of the Act of 1947, for the words 'for a period of one year from the date of its commencement' the word3 and figures 'till the 31st March, 1960' were substituted. The point which arose in the case, however, was not with reference to the validity of these various steps in their application to the regular area in the Province of Bihar, but with reference to Chhota Nagpur Division, which is a partially excluded area. The Governor of Bihar by virtue of the powers vested in him Under Section 92 (l), Government of India Act, issued a notification on 16-3- 1947, directing that the Bihar Act, of 1947, should apply to the Chhota Nagpur Dvision. On 7-3-1949, the Governor of Bihar issued a further notification in exercise of the same powers, directing that, the Bihar Maintenance of Public Order Act of 1947, shall apply and shall always be deemed to have applied to the Chhota Nagpur Division with effect from 16-3-1948. The appellants before the Federal Court were arrested in, the Chhota Nagpur Division in January and February of 1949 under the Bihar Act of 1947 as extended to chhota Nagpur Division by the notification of 16-3-1947 and as prolonged in duration by the notification of 11-8-1918, and the question was whether their arrest and detention were legal. Their Lordships of the Federal Court by majority held that the detention and arrest were illegal, only Fazl Ali J. dissenting. While, no doubt, the validity of the extension of the Bihar Act of 1947 by a notification, in so far as its operation in the regular area of the Province of Bihar was concerned, was not the matter directly in issue in that case, their Lordships had to consider the validity of that extension for the purpose of determining whether in January and February of 1949 ,when the detenus were arrested and on 7 3-1949 when the Governor purported to issue a notification under Schedule 2 (1), Government of India Act, applying the Bihar Act to Chhota Nagpur Division, the said Bihar Act of 1947 was validly in operation so as to be capable of being applied and invoked. All the four Judges came to the unanimous opinion that the Bihar Act of 1947 was not validly in operation after the expiry of the period of one' year, from the date of its commencement, and that the proviso vesting the power in the Provincial Government to extend its operation by a notification was illegal and ultra vires. It is no doubt true that the proviso which was under consideration there, is somewhat different from Sub-section (4) to s. l which we are called upon to consider here. Under that proviso, the Provincial Government was given the power by a notification not only to extend the period for which the Act was to remain in force but also the power so to extend, with modifications if any, while under Sub -s. (4) to Section 1 with which we are concerned, the power is only the power to extend the duration of the Act. It has been suggested that if what was given was only the power of extension, without the power of modification, the decision of their Lordships might conceivably have been different. I am unable to agree with this contention. It is true that the learned Chief Justice Mukherjee J. and Patanjali Sastri J. lay some stress on the fact that the power given is a power of extension with modifications if any and also that so far as Patanjali Sastri J. is concerned his Lordship specifically left this particular question open, though inclined in favour of the majority view even on this. But it is clear that their Lordships, who were in the majority, expressed an unequivocal and decisive opinion that the power to extend the operation of an Act cannot come within the purview of conditional legislation, and that it amounts to a delegation of legislative power which is invalid. The following passages from the judgment of their Lordships establish this. His Lordship the Chief Justice says at p. 230 :

'The power to extend the operation of the Act beyond the period mentioned in the Act prima facie is a legislative power. It is for the Legislature to state-how long a particular legislation will be in operation. That cannot be left to the discretion of some other body.'

Again at the same page :

'Even keeping apart the power to modify the Act, I am unable to construe the proviso, worded as it is, as. conditional legislation by the Provincial Government. Section I (3) and the proviso read together cannot be properly interpreted to mean that the Government of Bihar in the performance of its legislative functions had prescribed the life of the Act beyond one year. For its continued existence beyond the period of one year it had not exercised its volition or judgment, but left the same to another authority, which was not the. legislative authority of the Province,'

Patanjali Sastri J. says as follows at p. 233 ;

'The proviso leaves it to the discretion of the Provincial Government and the two Chambers of the Provincial Legislature, to prolong the duration of the Act for a further period of one year with such modifications as they may think fit. This, in my opinion, is also a legislative power and not a matter of mere administrative discretion.'

His Lordship points out later on at p. 234 that in Queen v. Burah, 5 I. A. 178; (4 Cal. 172 P.C.) their Lordships of the Privy Council held that the power vested in the Local Government by Schedule 9 of Act XXIII [23] of 1661 to extend the Code of Civil Procedure of 1859 to certain areas 'subject to any restriction, limitation or proviso which the Local Government may think proper,' as an instance of valid conditional legislation and that the power of modification may only be a more comprehensive term for the phrase 'restriction, limitation or proviso' indicating thereby that his Lordship was inclined to think that if the power of extension of duration was not there, the validity of the proviso may have been supported on the ground that it was a mere conditional legislation. A careful reading of his Lordship's judgment seems to me to show that it was because the power of extension of the duration was specified in the proviso that his Lordship considered that it amounted to a delegation of legislative power. Turning to the judgment of Mahajan J., his Lordship laid down at p. 239 as follows :

'In cases of conditional legislation, on fulfilment of the condition the legislation becomes absolute. But in cases of delegated legislation, the delegate has to take a decision whether that legislation is to continue or has to be modified, amended or varied.'

Then again at p. 240 his Lordship says as follows :

'I am further of the opinion that the power given to extend the life of the Act for another year in the context of the language of Schedule (3) also amounts to an Act of Legislation and does not fall under the rule laid down in Queen v. Surah, 5 I. A. 178 : (4 Cal. 172 P. C.). The Act in a mandatory form stated that it shall be in force for one year only. That being so, the power given in the priviso to re-enact it for another year is legislative power and does not amount to conditional legislation.'

Mukherjea J. also has expressed himself in the same unequivocal terms at p 251 as follows : 'The duration of a statute is a matter for determination of the Legislature itself.' In the face of these unequivocal pronouncements of their Lordships, it is impossible for as to uphold the 'Contention that the decision of the Federal Court on this matter is merely obiter and not binding on us. Under Article 141 of the Constitution, the law declared by the Supreme Court is binding on all the Courts within the territory of India. Even if it were possible for us to say that these unequivocal expressions of opinions quoted above are obiter, we are bound to attach the greatest weight to such pronouncements when they directly arose for consideration in the case and we should in any case have followed the same. In my view, therefore, the extension of the House Sent Control Act of 1947 by notification dated 25-2-1950 is ultra vires and it must be held that the said Act is no longer validly in operation.

5. It has, however, been argued that this does not affect the question that has been raised before us in this cage, namely, whether the execution application made by the decree-holder in this case on 10-5-1947 at a time when the Act was undoubtedly in force, wag valid, and whether the decree-holder could get an order for delivery on the basis of that application. This raises the question as to the effect of the expiry of a temporary Act.

6. It was held in some of the old English oases that where an Act expired, or was repealed, it was to be regarded in the absence of provision to the contrary as having never existed except as to matters or transactions past and closed. (See Maxwell on Interpretation of Statutes, Edn. S. p. 847). The rigour of this rule was subsequently modified by Schedule 8, (English) Interpretation Act of 1889, which provided for the effect of repeal in respect of pre-accrued rights and liabilities and proceedings in respect of the same. Similar provisions have now been made in India by Schedule , Central General Clauses Act (X [10] of 1897). This section, however, applies only to repealed Acts and not to temporary Acts, whose duration expires by lapse of time. The English cases have in later years evolved a different rule as regards the effect of expiry of temporary Acts. In Stevenson v. Oliver, (1841) 151 E. R. 1024 at p. 1027 : (8 M. & W. 225) this distinction has been pointed out by Baron Parke in the following terms :

'There is a difference between temporary statutes which are repealed; the latter (except 90 far as they relate to transactions already completed under them) become as if they had never existed; but with respect to the former, the extent of the restrictions imposed, and the duration of the provisions, are matters of construction.'

In that case the question that arose was the following : By 6 Gao. 4, C. 133, Schedule , it was provided that every person who held or thereafter should hold a commission or warrant as surgeon or assistant surgeon in His Majesty's navy or army, should be entitled to practise as an apothecary in any part of England or Wales without having undergone the examination or received the certificate required by a previous statute. The Act was in terms temporary and was to continue until 1-8-1826. The question arose whether the certificate of the plaintiff who had not passed the requisite examination, but who held a warrant as assistant surgeon in the navy during the period when the expired Act was in force enabling him to practise as an apothecary continued valid after the expiry of the Act and it was held that it did so continue to be valid. In 96 E. R. 259 : (l Black w. 451) in Note 'b' under Miller's case it is stated as follows:

'A contract declared by statute to be illegal, is not made good by a subsequent repeal of the Statute.'

Having regard to these principles, it appears to me in this case that the expiry of the House Rent Control Act of 1947 has no effect on the question we are called upon to consider on the contention of the appellant. What we are asked to say is whether the respondent's application filed on 10-5-47 was not a valid application at the time. This is not the same thing as treating the expired Act as continuing in force for any present purposes. If appears to me also that the fact that the Courts below have not upheld the plaintiff's contention on the construction of Schedule 3 and that the matter is now pending before us in appeal does not, as has been suggested, alter the situation. For instance, it could not be contended that if the Courts below gave effect to the judgment-debtor's contention and the decree holder came up in appeal before us, he could invite the Court to say that the application filed by him became validated by the expiry of the Act even though this Court came to the conclusion that the lower Courts were right in the view that they took, with reference to the law as it then stood. The matter is also, I think sufficiently covered by Schedule 1 of the very Act which has expired. That section provides for the effect of the expiry of the Act and states that

'the expiration of the Act shall not affect any liability incurred under the Act and shall not affect any legal proceeding in respect of any such liability.'

If the contention of the appellant as to the scope and effect of Section 13, namely, that the execution proceeding was incompetent without the previous written permit of the House Rent Controller for the same, be correct, it follows that the proceeding was liable to be dismissed on that ground. That liability has not in any way been affected by the expiry of the Act. See Kashmiri Lal v. Kishan Dei, A. I. R. (11) 1924 ALL 563 : (26 Cr. L. J. 90). If the Courts below have not given effect to that liability by a wrong construction of the section, a Court of Appeal which has to pass the order which the lower Courts were bound to pass, has to give effect to that liability and dismiss the execution proceeding and in so doing is giving effect to the expired Act for the limited purpose of deter. mining this liability.

7. Learned counsel for the respondent urges that Schedule 3, House Rent Control Act, does not, in any view, affect the jurisdiction of the Court to entertain the application for execution, and that it therefore renders an execution application not complying with it, liable to be dismissed. It is urged that what at moat can be said is that the permit of the Controller is required, before the relief by way of eviction can be granted. That, however, is a contention which relates to the merits of the construction of Schedule 3 and has no bearing on the question whether the appellant can urge the points that have been raised before us having regard to the expiry of the Act. The merits of the appellant's contentions based on the House Rent Control Act of 1947, have therefore, to he considered notwithstanding the expiry of the Act.

8. Before dealing with the question of constraction of Schedule 3, some comparatively minor arguments raised on both sides may be dealt with. The respondent urges that even with reference to the provisions of the House Rent Control Act, his suit for eviction and the subsequent proceedings there under are not hit either by Schedule or Schedule 3. He points out that the appellant judgment-debtor was in arrears of rent by the date of the filing of the suit and that having regard to the wording of Sub-section (a) of Section 5, the liability for eviction of the tenant on the ground of non-payment of rent under the general law is not affected by any of the provisions of the Act. He relies on certain observations of this Court in Banschhanidhi Samantrai v. Lachmi Narain, I. L. R. (1949) I Cut. 231: (A. I. R. (37) 1950 Orissa 1). This question, Lowever has not been raised in any of the Courts below and has been for the first time raised before us at this late stage. A perusal of the plaint, no doubt, shows that non-payment of rent has been alleged and it would appear from the subsequent proceedings that it was a fact. But a perusal of the written statement give3 an indication that there was a dispute between the parties prior to the date of the suit arising out of the demand of the landlord for increased rent, and it appears not unlikely that the rent remained unpaid on account of this dispute. It is not in every case of non-payment of rent under the general law that there is a liability for eviction of the tenant. In order that it may be available as a ground for eviction, it must be a condition of the tenancy. The question as to whether the condition is fulfilled is not concluded by the bare factcum of non-payment; but is to be determined with reference to the circumstances attending such non-payment. For instance, if the non-payment is not wilful, but has been brought about by any unreasonable conduct of the landlord, it may not bring about liability for eviction. Whether, therefore, the appellant judgment-debtor in the present case incurred any liability for eviction merely on the ground of non-payment and whether the plaint in the case which was distinctly based on the order for exemption obtained from the Rent Controller, is to be treated as falling outside the scope of the House Rent Control Act, merely because, non-payment is also alleged, are matters that must depend upon further investigation of facts, as to circumstances under which the non-payment may have occurred. The contention therefore, cannot be allowed to be raised at this stage.

9. The appellant urges that over and above the previous exemption order of the Rent Controller dated 15-3-44 a fresh exemption order was necessary, apart from any permission under Schedule 3 of the Act. The respondent's advocate on the other hand contends that the previous exemption order gives him a vested right to obtain his remedy by way of eviction of the tenant by taking proceedings for the same and continuing them to their effectual termination. It appears to me that both the contentions are unsustainable. The appellant points out than in Schedule (a), House Kent Control Act, the phrase 'in execution of a decree or otherwise' is an addition, which is not to be found either in Schedule of the previous Ordinance of 1946 or the corresponding Schedule , House Rent Control Order, 1942. He, therefore, urges that the exemption order already obtained is not effective for purposes of execution. On the other hand the respondent says that haying regard to Schedule 8, House Rent Control Ordinance of 1946, and Schedule 0, House Rent Control Act of 1947, an order of exemption obtained by him under the provisions of the House Rent Control Order of 1942 must receive its full effect and operation, so as to entitle him to obtain actual eviction through Court on the basis of said exemption order. So far as the appellant's contention in this behalf is concerned, it appears to me to be clear that by virtue of Schedule 0 of the Act, taken in conjunction with Schedule 8 of the Ordinance, the previous exemption order must be treated as an exemption order obtained under the corresponding provision of the present Act. There can be no doubt that in spite of the addition of the phrase 'in execution of the decree or otherwise,' cl. (a) of Section 5 of the Act, corresponds to S. & of the Order, at least in so far as suits for eviction filed subsequent to the coming into force of the House Rent Control Order of 1942 are concerned. As regards the respondent's contention, the only effect of S, 20 is that the prior order of exemption is to be treated as one passed under the corresponding provisions of the present Act, and not that it is to have the same opecativeness as it had under the prior Act which is quite a different matter. Indeed, this argument proceeds on a misconception of the scope of an exemption order. Such an order merely exempts the landlord from the disability imposed on him by Sub-section (a) of Schedule and enables him to pursue his remedies under the general law, and relegates the parties to the general law, but cannot have the effect of guaranteeing to the parties that that general law may not once again be altered by a competent Act of the Legislature and a fresh disability imposed. Learned counsel for the respondent also attempted to argue that the exemption order obtained under the House Rent Control Order must be taken to be a combined order under Sections 5 and 13 of the present Act treating Sections 5 and 13 together as the provision corresponding to the old Section 4, House Rent Control Order. This argument is clearly without any substance.

10. The only substantial question on the merits raised in the case is as to the correct interpretation of Schedule 3, and its applicability to the present case and this remains to be considered. The appellant contends that (l) the requirement under the section is in addition to the requirement under Schedule ; (2) the requirement is applicable as much to execution proceedings as to suits; (3) it is a condition precedent to the institution of a suit or execution proceeding. The respondent controverts each and every one of these propositions.

11. As regards the first two of the above contentions, the respondent points out certain difficulties in the way of adoption of the construction of the section which the appellant urges. The difficulties that he relies on, arise from (a) the use of the word 'tenant' in the section and the definition of the word 'tenant' as given in S, 2, Sub-section (5) of the Act; (b) the use of the clause

'in which the ground speoified in the second proviso to cl. (b) of Schedule has been taken as a ground for such eviction.'

It is urged that when a suit is filed for eviction after obtaining an order of exemption under Schedule (proviso), the only ground for eviction is that the tenancy has been validly terminated by a notice to quit after the exemption order has been obtained and not any of the grounds referred to in second proviso to el. (b) of Section 5. Similarly when an execution proceeding is filed to enforce a decree for ejectment already obtained after an exemption order, no ground is or need be specified for the execution excepting the fact of the decree having been obtained. It is therefore urged that the section which, in terms, applies only to suits or proceedings of a particular category, namely, those in which particular grounds are specified as grounds for eviction, is wholly inapplicable to cases where an exemption order has already been obtained. It is, therefore, urged that this section is meant to apply only to the limited class of cases where eviction proceedings have been already initiated without the exemption order either because the Act itself was not in force at the time, or because the Act had not been brought into operation in the particular area. This argument necessarily implies that the section is applicable only to fresh execution proceedings where there has been no exemption obtained prior to the institution of the suit, since every suit to be filed after the Act came into force would be preceded by an exemption order, as a matter of course, at least, in so far as month to month tenancies are concerned. 80 to limit the construction of the section would, however, make the word 'suit' in the section completely devoid of any operation and would also not obviate the objection that no execution proceeding is based on any particular ground excepting the fact that a valid decree for eviction had already been obtained. If the word 'suit' is not to be completely obliterated from the section, by difficulties of construction, it must obviou9ly apply to all future suits for eviction which would be preceded, as a matter of course, by an exemption order in respect of month to month tenancies. It would, therefore, appear to be clear that in respect of, at least, future suits for eviction, as regards month to month tenancies, the permission under Schedule 3 is over and above and independent of an exemption order. Having regard to the absolute and mandatory language of Schedule 3 and the opening words of S. S which says that that section is ''subject to the other provisions of the Act' which of course includes Schedule 3, it cannot reasonably be contended that an order of exemption under Schedule obviates the necessity for obtaining the permission Under Section 13. It appears to me, therefore, that the limited construction urged for by the appellant's counsel restricting the operation of Schedule 3 to oases, where an exemption has not already been obtained is not permissible. Whether a suit for eviction can be maintained merely by obtaining a written permission of the Rent Controller without having previously obtained any exemption is different matter and does not arise for decision. I am, however, inclined to think that an order of exemption in the first instance and a distinct order for permission to institute a suit at the time of such institution are both required under the Act. This appears to be a fair inference from the fact that Schedule 3 is a specific addition by the Ordinance of 1946 and the Act of 1917, to the pre existing corresponding provision under the Order of 1942. The two appear to me to serve two different purposes. As already pointed out above, the exemption order is meant merely to remove the disability relating to the operation of the general law imposed by Schedule (a). Such a removal of the disability enables the landlord to terminate the tenancy and get possession without having to go to Court if he can, and also absolves him from any penalty for contravention of the provisions of the Act Under Section 15 thereof. When, however, the landlord is obliged to seek the help of a Court by instituting proceedings, a fresh permission may well he required to ensure that the circumstances with reference to which exemption has been granted, continue to apply and justify eviction through Court. It is to be remembered that a suit for eviction may be filed long after the tenancy has been terminated and the execution proceedings based on the eviction decree may be kept alive for years, The Act itself was, no doubt, intended to be operative for a temporary period. But having regard to the prevailing conditions relating to pressure for residential house, in urban area3 the Legislature might have been anxious to provide an additional safeguard for the tenant and might have well thought that the safeguard against the abuse of exemptions provided under Schedule 0 (a) real with the proviso to Schedule was not enough. However this may be, so far as the present argument is concerned, I can see no reason for not giving full effect to the language of Section 13, merely because there is scope for saying that the phrase in the section viz ,

'in which the ground specified in second proviso to cl. (b) of Schedule , has been taken as a ground for such evictions,'

is inappropriate, if strictly understood. It appears to me that the said phrase is merely intended to be descriptive of the class of cases to which Schedule 3 applies and not to imply the requirement of any such ground being a necessary part of the allegations on which that proceeding is instituted. Thus, for instance, the section will not apply where the ground for eviction is non-payment of rent or breach of conditions of tenancy, which takes it out of the operation of Schedule , Sub-section (a) itself. To give effect to the contention of the respondent in this behalf, would either make the section completely otiose or at least have the effect of deleting the word 'suit' in the section, which is not permissible. It may be mentioned, in connection with this portion of the argument that it has also been urged that the word 'proceeding' in the section must apply only to what may be called an 'original proceeding' for eviction and not to an execution proceeding, which is merely a proceeding to enforce the decree in a suit already obtained. Such a construction again, however, would make the word 'proceeding' absolutely otiose having regard to what is admitted before us, viz., that in the Province of Orissa, no mere original proceeding for eviction of tenants otherwise than by a suit ate available under the law. The word 'proceeding' in my opinion is wide enough to cover an execution proceeding. See Gurupadapa Basapa v. Virbhadrapa, 7 Bom. 459 and Deb Narain v. Narendra, 16 cal. 267 (FB) at pp. 279, 280.

12. The next objection relating to the construction of the section based upon the use of the word 'tenant' has to be noticed. 'Tenant' has been defined in the Act as

'including a person continuing in possession after the termination of his tenancy otherwise than under the provisions of this Act.'

It has been pointed out that when an exemption order has been obtained and a valid notice to quit has been given, the tenancy has been terminated thereby, under the provisions of the Act and therefore, a person continuing in possession thereafter is not a tenant within the meaning of the Act. In such a case, therefore, neither the suit against him for eviction, nor any execution proceeding taken against him can be said to be 'against a 'tenant.' This objection appears at the first sight to have considerable force, but once again the difficulty is that if the word 'tenant' used in S, 13 is construed as above, the entire section becomes devoin of any operation and is rendered otiose. To avoid this, it has been suggested on the other side that the phrase 'continuing in possession after termination of she tenancy otherwise than under the provisions of this Act' in the definition of the word 'tenant' must be taken to mean a person continuing in possession until evicted under the provisions of the Act and that the termination 'contemplated is only by the actual eviction. I I am not prepared to adopt this construction, which appears to ma to be a complete substitutions of different words in the definition of the word 'tenant' for the words actually used. The solution, however, of this difficulty to my mind lies in the foot that the definition in the section, as appears from the opening sentence of Schedule , applies only when there is nothing repugnant in the subject or context. To construe the word 'tenant' in the light of the definition, would be repugnant to the subject or context, inasmuch as is renders Schedule 3 absolutely otiose. On the other hand, there is another way of looking at this matter.

13. A. suit or a proceeding by a landlord against a tenant for eviction is a well-known, category of suit. It is obvious that at the date of the institution of such a suit, or proceeding, the person against whom it is instituted, is not strictly in law a tenant, an ex-tenant whose tenancy has already terminated under the law, but it is still permissible to designate it as a suit by a landlord against a tenant. This has been clearly pointed out by their Lordships in Karnani Industrial Bank Ltd. v. Satyaniranjan Shaw, A. I. R. (15) 1928 P. C. 227 (56 cal 80). In that case their Lordships construing Schedule 5 (l), Calcutta Bent Act, which provides for the Controller granting a certificate as 'regards the standard rent on the application made to him by any landlord or tenant, held that this provision was not applicable where the application was made by a tenant whose tenancy had aspired by forfeiture or efflux of time. Their Lordships held that this was not the correct interpretation and stated as follows:

'Their Lordships are of opinion that this adopts too narrow a construction of the words. In order to give any working effect to the Act it is necessary that the words 'landlord and tenant' must include, as they often do in ordinary parlance, ex-landlord and ex 1951 Orissa/15 & 16 tenant. An action by ex-landlord against ex-tenant might ordinarily be described as an action of landlord against tenant.'

This agrees with the decision of the English Court of Appeal in Remon v. City of London Real Property Co., (1921) 1 K. B. 49 : (89 L. J. K. B. 1105), where with reference to similar words in Schedule 5 (l), Increase of Bent Act Sorutton L. J. says:

'Whom did they mean to include in the term 'tenant'? if a tenant by agreement whose tenancy had expired was not within those terms, the whole purpose of the Act would have been defeated.'

It, therefore, appears to me that the use of the word 'tenant' in S.13, does not create any serious difficulty and must be meant to refer to an extenant.

14. Learned counsel for the appellant strongly urges that to give effect to the section by construing the word 'tenant' as 'ex-tenant' and by understanding the. clause

'in which the ground specified in the second proviso to cl. (b) of Schedule has been taken as a ground for such eviction.'

As referring to the class of suits or proceedings to which it is intended to apply, is to adopt a strained and forced construction and that there is a way of giving effect to the Act by holding that it applies only to cases where an exemption order has not already been granted so far as month to month tenancies are concerned under Schedule of the Act, and where an order disallowing extension has not been passed so far as term tenancy is concerned under Schedule 0 of the Act. It appears to me that to take Schedule 3 as having so extremely limited an operation cannot be justified on the actual language used by the section.

15. My conclusion, therefore, on this part of the case is that the requirement of Schedule 3, is in adddition to the exemption contemplated by Schedule and applies equally to a suit as well as an execution proceeding for eviction of a tenant and that it applies to month to month tenancies contemplated by Schedule , in respect of which a previous application for exemption would be necessary, that is to say, that it does not apply to proceedings for eviction for non-payment of rent or breaches of conditions of tenancy which do not fall within the prohibition of Schedule (a). A question might arise whether where a permit has already been taken for the institution of a suit, a fresh permit Under Section 13 is required for every succeeding execution proceeding. That question does not directly arise in this case because admittedly no permission under Schedule 3, has at all been obtained either for the suit or for the first execution petition inasmuch as Schedule 3 was not then a part of the Rent Control Order. Therefore, it appears to me dear that the permit contemplated by Section 13 was clearly necessary for the execution application filed by the respondent on 10-5-1947.I may add, however, that to construe the section as requiring a permit for each succeeding execution application or indeed for an execution application when the suit itself has been filed after obtaining permission, may be considered unreasonable. It may be possible to interpret the section as requiring such a permission either for a suit or for a proceeding by reading the word 'or' disjunctively and not as necessarily requiring a permission at every stage.

16. The further question that has yet to be considered is whether the requirement by way of permission is a condition precedent for the filing of the suit or proceeding or is only required before granting of the relief. For, if the latter is the correct interpretation, it would be obvious that since as held above the Act itself has already expired, we cannot now ask that the permit should be obtained before the decree is actually executed by warrant of delivery. Here again, there seems to be no reasonable scope for any doubt on the matter. The section is mandatory. In specific terms it says:

'No suit or proceeding shall be entertained by any Court unless the landlord has been permitted by the controller by an order in writing to institute such a suit or proceeding and has produced before such Court proof that such permission has been granted.'

This seems clearly to mean that the permission is required for the institution of the suit or the proceeding itself and that proof of the same should be produced before such Court which seems to imply that the document constituting the proof has to be produced along with the institution of the proceeding. The section prohibits a Court from entertaining a suit or proceeding unless the conditions are satisfied. It is not possible to construe the word 'entertain' merely as meaning the granting of relief at the time of the dispossal of the proceeding. The word 'entertain' as appears from the Oxford Dictionary vol. 11, p. 213 under the alphabet 'E' is shown to mean 'to admit to consideration.' The word connotes, therefore, the stage of taking cogaizance of the proceeding rather than the stage of granting relief and thus appears to hit at the power of the Court to admit the proceeding even at the very initial stage. I may also add that no objection can be taken to Section 13 as affecting the normal power or the jurisdiction of the Court under the Civil P. C, because it appears that the Orissa House Rent Control Act of 1947 had received assent of the Governor-General on 8-3-1947, before it was brought into force,

17. It therefore follows, in my opinion, that the objection of the appellant to the maintainability of execution application filed by the respondent on 10-5-1947 as E. 0. NO. 247/17 as the law then stood, must succeed and the appeal must accordingly be allowed. I must, however, note that I have come to that conclusion with reluctance, in it's application to the facts of the present case. The record clearly shows that from the moment the suit has been instituted and. during the pendency of the first execution application, the judgment-debtor has been repeatedly taking extensions of time from the respondent; for vacating the premises and has in fact been: able to continue in the premises virtually on. account of the indulgence of the respondent. He now derives an unexpected and probably unfairadvantage by virtue of the provisions of law which have ceased to be operative at any rate for the time being. These considerations, however are beside the point so far ad the issues arising, in the appeal are concerned.

18. The appeal is, therefore, allowed and the E. C. No. 247/47 must be dismissed. In the circumstances the appellant will have no costs at any stage of the proceedings here or in the Courts below.

19. I may take this opportunity of adding: that since in the view we have expressed that; the House Rent Control Act is no longer in force fresh legislation is almost inevitable. The Legislature may well take that opportunity to make its intention clear on the matters debated in this case without leaving room for difficulty of construction.

20. Panigrahi J.-Two points arise on this appeal: first, what is the law in force at the time, of the filing of E. 0. No. 247 of 1947; and secondly, what is the law applicable now, when the appeal arising out of that execution is being heard.

21. A few facts are necessary to be stated in order to elucidate the first point. Under Para. 4 of the Orissa House Control Order of 1942, the decree-holder (respondent) obtained an order of exemption from the Controller on 15-3-44 and terminated the tenancy of the appellant by a notice to quit issued on 13-9-44. Suit No. 75 of 1945 was thereafter filed on 26-2-45 and a decree in ejectment was obtained by him on 17-12-45. In pursuance of this decree the first E.C. no. 230 of 1946 was filed on 30-4 46. While that execution cage was pending the House Rent Control Ordinance of 1946 was published in the Orissa. Gazette Extraordinary on 1-10-46. The Ordinance introduced a new clause which was not to be found in the House Rent Control Order of 1942 which it replaced. Clause 13 of the Ordinance enacted that no suit or proceeding by a landlord against a tenant for eviction from a house, in which the ground specified in the second proviso; to cl. (b) of Schedule thereof has been taken as a ground for such eviction, shall be entertained by any Court unless the landlord has been permitted by the Controller by an order in writing to institute such suit or proceeding and has produced before such Court evidence that such permission has been granted. There was a saving clause in the Ordinance which enacted that :

'Notwithstanding the expiry of the Orissa House Rant Control Order 1942, all orders passed and other things done in pursuance of the said order, shall be deemed to have been validly passed and done under the corresponding provisions of this ordinance.'

On 1-11-1946, the judgment-debtor filed a petition, Ex. A, for granting him time till 21-12-46 to vacate the house and stated therein that :

'The petitioner has agreed to vacate the house on or before 1-1-17 failing which writ of possession will issue without further reference.'

By a similar petition dated 13.2-47, Ex. A 1, the appellant stated that the decree-holder accepted the amount of compensation decreed against him upto the end of February, and agreed to allow the appellant to remain in the house till the end of February and deliver vacant possession of the house on 1-3-1947. The appellant further agreed that if he failed to vacate the house on 1st March the writ of possession would issue. The writ was actually issued on 11-3-47 but was returned unexecuted for want of identification. The execution case was dismissed, on part satisfaction, on 7-6-17.

22. On 21-3.1917 the Orissa House Rent Control Act (v [6] of 1947) was first published in the Orissa Gazette. Sub-section (3) of Schedule of the Act enacted that it shall come into force in such areas, and on such dates, as the Provincial Government may by notification appoint and different dates may be so appointed for different areas. The Provincial Government did not notify the application of the Act to Cuttack till 3-5-1947 on which date Not in. No. 5177-D dated 3-5-1947 was published in an Extraordinary issue of the Orissa Gazette The notification reads:

'In exercise of the powers conferred by Sub-section (3) of Schedule , Orissa House Kent Control Act 1947 (Act V [5] of 1947), the Governor of Orissa is pleased to direct that it shall come into force in the areas specified in the schedule annexed hereto on the date of this notification.'

Item 3 of the schedule annexed to the notification mentions Cuttack municipal area including the adjoining villages of Khatmagar, Sankarpur, etc. Meanwhile the authorities have taken action under the Act as if it had been in force from 21-3-1947. It was, therefore, felt necessary to validate all such actions purporting to have been taken under the Act and accordingly Orissa Act xxi [21] of 1947, the Orissa House Bent Control (Amendment and Validation) Act was passed and published in an Extraordinary Gazette issued on 12-7-1917. This Act amended Sub-section (3) of s. l, House Rent Control Act (V [5] of 1947) by providing therein that it shall come into force at once in the towns and areas specified in the schedule; and the schedule attached to the notifications of 3.5-1947 was carried into this Act,

23. Three days after the dismissal of the E. C. No. 230/46,that is on 10-5-1947, the decree-holder filed a second E. C. no. 247 of 1947. On 16-7-1947, that is four days after the Validation Act was passed, the judgment-debtor filed a miscellaneous case Under Section 47, Civil P. C. objecting to the maintainability of the execution petition on the ground that S.13, House Rent Control Act was a bar. It will be noticed that the notification extending the application of the House Rent Control Act to the town of Cuttack was published at a time when the first E. C. No. 230/ 1946 was pending in the Court and the Validating Act was passed at a time when the second E. C. No. 247 of 1947 was pending. The question for decision, therefore, is whether the notification dated 3-5-1947 or the Validating Act of 12-7.1947 would affect pending proceedings or render the institution of the execution case invalid retrospectively.

24. It is a well-recognised rule of construction that statutes should be interpreted, if possible, so as to respect vested rights,- Hough v. Windus, (l884) 12 Q. B. D. 224 at p. 237 and such a construction should never be adopted if the words are open to another construction. It is not to be presumed that interference with existing rights is intended by the Legislature, and if a statute be ambiguous the Court should lean to the interpretation which would support existing rights. In the absence of anything in an Act to show that it is to have retrospective operation, it cannot be so construed as to Lave the effect of altering the law applicable to a claim in litigation at the time when the Act is passed, Leeds and County Bank v. Walker, (1883) 11 Q. B. D. 84 at p. 91: (52 L.J.Q.B. 590). So careful are the Courts in endeavouring to protect vested lights that we find that in several cases Judges have refused to allow statutes to have retrospective operation although their language seemed to imply that such wa3 the intention, of the Legislature, because if the statutes had been so construed, vested rights would have been defeated. See Craies p. 335 and the cases cited therein.

'It is a general rule, said Jessell M. R. in In re Joseph Suche & Co., Ltd, (1875) 1 Ch. D. 50, 'that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they applied to pending actions, do not affect them.'

In accordance with this principle it was held in Ex. parte Pratt, (1884) 12 Q. B. D. 331 that proceedings pending during an earlier Act were saved. In Delhi Cloth & General Mills v. Income -tax Commissioner, A. I. R. (14) 1927 P. C. 242: (9 Lah. 284), the same rule was applied to Indian cases and the Judicial Committee held:

'Provisions which touch a right in existence at the passing of a statute are not to be applied retrospectively in the abaence of express enactment or necessary intendment. Provisions which if applied retrospectively would deprive of their existing finality orders which, when the statute came into force were final, are provisions which touch existing rights.'

In United Provinces v. Mt. Atika Begum, A. I. R. (28) 1941 F. C. 16 : (I. L. R. (1941) Kar. F.C. 72), it was laid down that if there are two possible interpretations it is the duty of the Court to accept that one which is more reasonable, more consistent with ordinary practice, and less likely to produce impracticable results. Sulaiman J. observed at p. 37 as follows :

'Undoubtedly an Act in its operation may be retrospective and yet the extent ot its retrospective character need not extend so far as to affect pending suits. Courts have undoubtedly leaned very strongly against applying a new Act to a ponding action, when the language of the statute does Dot compel them to do so. It is a well recognised rule that the statutes should, as far as possible, be so interpreted as not to affect vested rights adversely, particularly when they are being litigated. When a statute deprives a person of his right to sue or takes out the power or jurisdiction of a Court in enforcing the law, as it stands, its retrospective character must be clearly expressed. Ambiguities in it should not be removed by Courts nor gaps filled up in order to widen its applicability.'

An exception is made in cases of provisions dealing with matters of procedure which may properly be retrospective in effect, but even here an exemption is made in cages where such construction would be textually inadmissible: Delhi Cloth & General Mills v. Income-tax Commissioner, A. I. R. (14) 1927 P. C. 242 : (9 Lah. 284). All these cases are based on the leading case of Colonial Sugar Refining Co. v. Irwing, (1905) A. C. 369 : (74 L. J. P. C. 77). In that case the creation of the High Court of Australia by the Australian Commonwealth Judiciary Act of 1903 took away the right of appeal from the Supreme Court of Queensland to His Majesty in Council. The question that fell to be considered was whether such right of appeal in a pending action which the party had before the Act was passed, could be deemed to have been taken away by the new Judicature Act, in other words, whether a litigant could be deprived of a vested right of appeal by a new enactment which withdrew such right and whether the statute was to be construed so as to operate retrospectively. Lord Macnaughten laid down the two following propositions in this connection; (l) if it was a matter which was more than one relating to procedure, that is if it touched a right in existence at the passing of the Act, it could not be deemed to be retrospective in its effect according to a long line of decisions extending from Coke; and (2) to deprive a suitor in a pending action of a right of appeal to a superior Court which belonged to him, was a very different' thing from one regulating procedure In Pannirselvam v. Veeriah Vandayar, 54 Mad. 627 : (A. I. R. (18) 1931 Mad 83) the contention that Act XI [11] of 1930 amending the Madras Local Boards Act ousted the jurisdiction of the Subordinate Judge who had entertained an election petition before the Act had coma into force, was negatived on the general ground that it was a fundamental rule of interpretation that a statute, other than one dealing with procedure, should not be construed so as to have retrospective effect. In Makar Ali v. Sarfaddia, A. I. R. (10) 1923 Cal, 85: (50 Cal. 115) the question was whether an auction purchaser at a court sale held under the old Civil Procedure Code of 1882 who discovered after the sale that the judgment-debtor had no saleable interest, could proceed only by an application under Order 21, Rule 93, Civil P. C. of 1903 or could file either a suit or an application which were both available to him un3er the old Code. It was held that the auction-purchaser had, on the data of the sale which was held under the old Code, a vested right to secure a refund of the purchase money by a suit as well and the same could in no way be deemed to have been extinguished by the Code of 1908. It was pointed out in that case that if the new Code were held applicable th8 remedy under the old Code might be barred by limitation and in gush a case the enactment could not be given a retrospective operation so as to impose an impossible condition on pain of forfeiture of a vested right. It was similarly held in Promotha Nath v. Mohini Mohan Pal, 47 Cal. 1108 : (A. I. R. (7) 1920 Cal. 435) that the old Code governed a suit for declaration of title against a purchaser at an execution sale which took place before 1 1-1903 after the new Civil Procedure Code came into force though the sale certificate wa3 issued late. It was held in Ajit Singh v. Bhagabati Charan, A. I. R. (9) 1922 Cal. 491 : (70 I. C. 370) that if the application of the provisions of an amending Act makes it impossible to exercise a vested right of suit, the Act should be construed as not being applicable to such cases In Punyabrata Das v. Monmohan Ray, A. I. R. (21) 1934 pat. 427 (153 I. C. 520), the Patna High Court refused to give retrosp3ctive effect to Bihar Act XXX [30] of 1923 which affected rights to property, as it was pointed out that the consequences of so holding would be disastrous. In Gursaran Das v. Parmeshwari Charan, A I. R. (14) 1927 Pat. 203 : (6 Pat. 296), a suit for possession which was instituted after the amendment of Bengal Act VI [6] of 1908 in its application to Chhota-Nagpur had come into play, but where the cause of action arose before that amendment had come into operation was held to lie in a civil Court as the plaintiff had acquired a vested right in regard to the same, and the summary procedure as provided in the Amending Act was not the only remedy open to him. Section 26 C, Bihar Tenancy Act (VIII [8] of 1984) was held not to take away the right which had vested in a party under a decree passed by a Court of competent jurisdiction on the ground that a new law should be so construed as to interfere as little as possible with vested rights as, otherwise, a valid decree would automatically become invalid which consequence could not be supported on general principles of justice : Shiva Janaki v. Kirtanand, A. I. R. (23) 1936 Pat. 173: (160 I.C.606) 606). The right of treating a judgment as final and conclusive is a vested right, and the right to enforce it is equally a right conferred by law, as proceedings in execution are but a continuation of the suit I have, therefore, no hesitation in holding that neither the Ordinance of 1946 nor the Act of 1947 had any retrospective effect on pending proceedings or on the decree that had been obtained by the respondent.

25. Although by the Validating Act pas3ed in July 1947 the Legislature regularised certain actions and proceedings taken in purported exercise of authority under the Act, it did not, in express terms, apply to pending proceedings. In my opinion, therefore, E C. No. 247 of 1947 filed by the landlord decree-holder is not affected by the House Rent Control Act having been applied to Cuttack town retrospectively, by the Validating Act passed in July 1947. Section 13 of the Act says that no suit or proceeding shall be entertained unless the landlord has been permitted by the Controller by an order in writing to institute such a suit or proceeding. The language contemplates suits or proceedings that are to be filed in future and the section is prospective in its operation. It does not require a decree-holder who is proceeding with his execution, as in the present case, to withdraw his execution and obtain a certificate and again start execution afresh.

26. The word 'proceeding' has not been defined in the Act, but it has received judicial interpretation. In Ratanchand v. Hanmantrav, 6 Bom. H. C. A. C. 166, Coutts C. J. and three other Judges of the Bombay High Court held that a suit is a judicial proceeding and that the word 'proceeding' should be taken to include all the proceedings in the suit, from the date of its institution to the date of its final disposal and would, therefore, include proceedings in appeal. In Deb Narain v. Narendra, 16 cal 267 (F.B.), Wilson J. delivering the judgment of the Court held that an appeal is a part of the same proceedings as the thing appealed against and that therefore if the thing appealed against is a decree in a suit/the appeal is a part of the same proceeding as the earlier steps in the suit. In Mungul Pershad v. Grija Kant Lahiri, 8 I. A. 123 : (8 Cal. 51 P. C.), their Lordships of the Privy Council held that 'an application for the execution of a decree is an application in the suit in which the decree was obtained'; and . execution proceedings are merely a continuation of the suit: 14 I. A. 37, Ram v. Roop. Section 6, Orissa General Clauses Act says that

'when any Orissa Act repeals any enactment hitherto made, or hereafter to be made, then unless a different intention appears the repeal shall not......(e) affect any investigation, legal proceeding or remedy in respect of such right, privilege, obligation, liability, penalty, forfeiture, or punishment, as aforesaid, and any such investigation legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed.'

This provision is made applicable to the, interpretation of Ordinances as well by Schedule 2 of the Act. In Ismail v. Leslie, 24 Cal. 399: (1 C.W.N. 188), the plaintiff filed a suit in the High Court for the recovery of a sum of over Rs. 2000 which before the hearing was reduced to a sum of less than Rs. 2000 and therefore below the limit for Suits cognizable by Small Cause Courts. Section 22 of Act xv [15] of 1882 deprived the plaintiff in a suit cognizable by a Small Cause Court of his costs, if he obtained a decree 'for less than Rs. 2000' unless the Judge certified, it was a fit case to be tried in the High Court. The suit was decided after the passing of Act I [l] of 1895, viz., the Presidency Small Cause Counts Act, which deprived the plaintiff of costs in cases in which he obtained a decree for less than Rs. 1000. The Judge allowed the plaintiff costs of the suit without certifying that the case was fit one to be brought to the High Court. It was held that the amending Act did not govern the case. Maclean C. J. observed that the new Act did not relate to procedure only and that it was retrospective. The Court adopted the dictum of Wilson J. in an earlier case which was as follows:

'The third class of oases consists of those in which the law is changed by a mere iepoal of a previously existing law and the repealing enactment otntainsno special rule for its own interpretation. Such cases are governed by Schedule , General Clauees Act.'

Trevelyan J. observed:

'The matter is, I think, concluded by Schedule , General Clauses Act, and the English Acts as to the effect of an alteration in the law of procedure upon pending proceedings have no application.'

Even assuming that the word 'proceeding' occurring in Schedule 3, Orissa Rent Control Act refers to an execution proceeding, it cannot affect pending execution proceedings.

27. I arrive at the same conclusion by a reference to Schedule 0 (1) of the Act, which is a repealing and saving clause. It reads as follows:

'(1) The Orissa House Kent Control Ordinance, 1946 is hereby repealed.

(2) Any order made or deemed to be made and anything done or deemed to be done under the said Ordinance and in force immediately before the commencement of this Act, shall continue in force and be deemed to be made or done under the corresponding provisions of this Act.'

The Ordinance of 1946 had a similar savings clause, in cl. 18 which says:

'Notwithstanding the expiry of the House Rent Control Order, 1942, all orders passed and other things done in pursuance of the said order, shall be deemed to have been validly passed and done under the corresponding provisions of this Ordinance.'

I have already pointed out that the Ordinance was not in force when the first execution case was filed and had expired when the second execution case was filed. Section 20 of the Act validates all actions taken under the Ordinance and Schedule 8 of the Ordinance in its turn validated all actions taken under the Order of 1942. The Act as well as the Ordinance lay dawn that anything done or deemed to be done and in force immediately before the commencement of the Ordinance or the Act, as the case may be, shall continue in force and be deemed to be made or done under the corresponding provisions of the Act or the Ordinance. A proviso in a repealing statute 'except as to acts done under it' will operate to preserve to parties all rights if the action is brought before the repealing statute passes, In Foster v. Pritchard, (1857) 26 L. J. Ex, 215, (5 W. R 610) an action for trespass had been brought against the bailiff of a county Court while 9 and 10 victoria chap. 95 was in operation. Section 139 of this Act enacted that no costs shall be awarded to the plaintiff unless the Judge so certified. This Act was repealed by 19 and 20 Victoria, chap. 108 when the litigation was pending. Section 2 of the repealing Act runs; ' The enactments specified are re. pealed except as to acts done under them'. It was argued in that case that the words, 'acts done under' meant 'acts done in pursuance of the repealed statutes.' Bramwell B,, pointed out during arguments in that case that the expression may be read thus:

'except as to acts for which actions were brought while the repealed statute was in operation.'

The words 'done under' may mean 'done while the statute was in operation.' Martin B observed:

'A fair meaning of the provision is-except as to acts done 'under the protection of the former statutes'.'

Pollock C. B., said:

'The object of such a proviso is to prevent the hardship which might arise if parties were left without protection for acts done under a statute which is afterwards repealed. The proviso is a common one being introduced into most repealing statutes and it is important to give it a liberal construction so as to carry out its object.'

The rule of construction in such a case, therefore, is that if a right has been once acquired it will not be taken away again by the repeal of the statute under which it was acquired. The words of Schedule 0 are large enough to save vested rights both against the operation of repeal clause itself and also against the previous clauses of the Act, This was the construction put upon the repeal and saving clauses in Hough v. Windus, (1882) 12 Q. B. D. 224 at p. 286: (53 L. J. Q. B. 165), cited above.

28. It was pointed out that there might be some difficulty in giving effect to the words 'corresponding provisions' as there was no provision in the Order of 1942 corresponding to Schedule 3 of the Act. The Legislature intended that the repealed Order should be harmonised with the repealing Ordinance and 'correspond' means 'suitable to as laid down in Sackville West v. Holmesdale, (1870) 39 L. J. Ch. 505 at P. 520: (L. R. 4 H. L. 543). If, therefore, there was no provision corresponding to Section 13 in the Control Order of 1942, it would not apply. Nor would it render invalid what was valid under the repealed Order as the saving clause expressly says that it 'shall continue in force and be deemed to be done under the Act ' It is by a legal fiction that anything done under a prior statute is deemed to be done under a later statute; and it is by just another legal fiction that we have to hold that although a provision corresponding to Section 13 was not to be found in the earlier Order any action validly taken under the earlier Order should be deemed to have been validly done under the later one. It could not have been the intention of Legislature that immediately the Act come into force, all suits and proceedings which arose under the provisions of the earlier Order and which were pending should be withdrawn and the conditions laid down in Schedule 3 should be complied with. A saving clause -unlike exceptions from an enacting clause-is liberally construed; See Halabury, vol. 31, p. 485. The effect of the saving clause is that those provisions of the House Rant Control Order which did not deter the plaintiff from executing his decree remained in force as if the succeeding Ordinance and Act had not been passed.

29. I have, therefore, arrived at the conclusion that the Orissa House Rent Control Act of 1947 does not in any way affect the plaintiff, decree-holder's right to execute his decree as that right was still being litigated, and that the law applicable at the time when the execution was filed is the House Rent Control Order of 1942.

Under that Order, the Judgment creditor had acquired the right to get delivery of his property sad the duty was imposed on the Court to deliver it to him. That right and that duty are expressly saved.

30. The second question posed at the beginning of this judgment is-what is the law applicable now to the appeal that is before us?

31. Sub-section (4) of S.I, Orissa House Rent 'Control Act:., says:

'It shall remain in force for three years but the Provincial Government may from time to time by notification extend the continuance of this Act for a further period or periods not exceeding in the aggregate two years.'

The period of three years fixed by the Act expired on 21-3-1950 and the Provincial Government issued a notification extending the life of the Act for one year, This notification is dated .21-2-1950. The case reported in Jatindranath v. Province of Bihar, 1949 F.L.J. 225 : (A.I.R. (36) 1949 F. C. 175: 50 Cr. L. J. 897) is clear authority for the position that the extension of an Act by notification is ultra vires and is of no effect. The position, therefore, is that there is no House Rent Control Act now in force in the State. We are bound to take notice of this fact and decide the appeal accordingly.

32. It is well established that an appeal is a a re-hearing. The adjudication of the rights of the parties is not yet final. Courts have, in numerous case a, recognised that in respect of any relief to be granted in a case on appeal, the Court of Appeal is entitled to take into account even facts and events which have coma into 'existence after the decree appealed against. In K. C. Mukherji v. Mt. Ramrattan Kuer, 63 I. A. 47 : (A. I. R. (23) 1936 P. C. 49), Lord Thankerton in the course of arguments observed that the duty of a Court is to administer the law of the land at the date when the Court is administrating it, In Lachmeshwar Prasad v. Keshwarlal, A. I. R. (23) 1941 F. C. 5 : (20 Pat. 429) it was held that the appellate Court is competent to take into account the legislative changes 'since the decision under appeal was given and its powers are not confined only to see whether the lower Court's decision was correct according to the law as it stood at the time when that decision was given. To the same effect are the cases reported in Shyamhanta v. Rambhajan, A. I.R. (26) 1939 F.C. 74 : (I.L.R. (1939) Kar. F.C. 165), where the following observation is made at p. 77 : 'There is no doubt that a High Court possesses such power in dealing with appeals from Courts subordinate to it.' See Section 107 and Order 41, Rule 33, Civil P. C. I have, therefore, no hesitation in holding that whatever be the law applicable at the time the execution case was pled and irrespective of whether the decision of the Court below is correct or not, there is no restraint now on the-decree-holder to evict his tenant. The appeal is, therefore, liable to be dismissed on this ground alone.

33. As much discussion centred round the construction of Sections 5 and 13 of the Act, I should like to place my views on these sections. It may be remembered that the House Rent Control Order, 1942 was applied only to a few municipal area3 in the province. But the House Rent Control Act of 1947 was applied to a number of other Union Board areas in addition to the areas to which the House Rent Control Order had been applied. Section 13 applies only to such other areas as had been brought under the operation of the Act in March 1947. It, therefore, says that no suit or proceeding shall be entertained by a Court without a permission being granted by the Controller to institute such a suit. Section 5 is restricted to tenancies from month to month and says that a tenant shall not be liable to be ejected whether in execution of a decree or otherwise, except for non-payment of rent or breach of the conditions of the tenancy, and provides that the Controller may grant exemption from this provision in certain circumstances. This section opens with the words 'Subject to the Provisions of this Act' and is, therefore, undoubtedly subject to the provisions of Schedule 3. It is clear that Schedule is to be read as subordinate to 8, 13. The effect of this would be that if a landlord obtains a decree in compliance with Schedule 3, Schedule (a) will not apply and he can straightway proceed to execute his decree and obtain possession. The two sections are mutually exclusive. Otherwise there would be an apparent inconsistency between the two. It cannot be supposed that after the landlord has filed a suit with the permission of the Controller, under Schedule 3 and obtained a decree, the tenant shall not be liable to be evicted in execution of that decree unless a further permission is obtained from the Controller under Schedule . Conversely, if the landlord obtained an exemption order from the Controller under proviso 2 to Sub-section (b) of Schedule , he will be at liberty to execute his decree obtained subsequent to this exemption, though the requirements of Schedule 3 with regard to the institution of a suit or proceeding may not have been complied with. The words ''whether in execution of a decree or otherwise' occurring in cl. (a) of Schedule should, in my opinion, be restricted to those decrees which had been obtained in areas prior to the extension of the Act to those areas.

34. The next question is whether both an exemption and a permission are required before a landlord can evict his tenant. When an exemption order is obtained under proviso 2 to cl. (b) of Schedule , the bar created by Schedule (a) is removed and it would be unreasonable to hold that the landlord should again apply to the Controller for permission to sue. I can see no purpose in such a course. The object of the exemption is to enable the landlord to get back possession of his house howsoever he can, whether by a suit or otherwise. If the Controller does not grant him exemption under proviso 2 to cl. (b) of Schedule , he has to give him a certificate as required in Schedule 3, permitting him to file a suit and satisfy the Court that the house is reasonably and in goad faith required for his own occupation, or that he has any other good and sufficient reason for ejecting his tenant, as laid down in proviso 2 to Section 5 (b), I am, therefore, inclined to read the two sections as mutually exclusive and as applicable to two different sets of circumstances. To hold that an exemption order, as well as a certificate to Sue, would be required in the same case would be unreasonable, besides involving inconvenience to the landlord and waste of public time of the authorities concerned. The Legislature could not; have intended such an unreasonable course.

35. A literal reading of Schedule 3 would mean that every time a proceeding is instituted a permission from the Controller for the institution of such proceeding would be necessary. An order of dismissal of a suit for default, a petition for attachment before judgment, for discovery or inspection, would all be proceedings in the suit. Is it expected that the landlord should obtain a permission every time such proceeding is instituted? That would be a futile and absurd course. The Legislature does not intend to enact any provision or law which, in its application, would lead to an absurdity, not does the law require a man to do that which is futile or fruitless. To get over this difficulty, it is suggested that the words 'in which the ground specified in proviso 2 to cl. (b) of Schedule ' occurring Schedule 3, should be read as governing only the words 'no suit' and that the words 'or proceeding' occurring after 'no suit' may be read disjunctively. If the suit has been filed on the ground specified in proviso 2 to cl. (b) of s, 5 and a decree obtained, after complying with the requirement of permission lay down in S.13, a further permission for execution of that decree would be superfluous. The Civil Procedure Code does not contemplate any grounds to be given in a petition for execution. Why then did the Legislature prescribe in Section 13, that a proceeding

'in which the ground specified in proviso 2 to cl. (b) of S.: 5, has bean taken as a ground for such eviction,'

shall not be entertained by any Court . without a permission from the Controller? I can think of two possible explanations. It may be that the words 'on proceedings' have been used ex abundanti cautela so as to include proceeding in the nature of a suit. It ma? be, which I think is more likely, that in respect of decrees for eviction which had been obtained on grounds other than those specified in proviso 2 to cl. (b) of Schedule , the Legislature intended that the decree-holder should not be entitled to evict. unless he satisfied the executing Court that the. house is reasonably and in good faith for his own occupation or that be has other good and sufficient cause. In such a the Controller's permission would be required. It is open to the landlord to terminate his lease on any of the grounds mentioned in Schedule 11, T. P, Act, but these grounds would not be enough justify the eviction of a tenant because Schedule (a) in a bar and the decree-holder should obtain a permission in writing from the Controller and satisfy the Court that the conditions mentioned in proviso 2 to cl. (b) of Schedule , are also complied with. In my judgment, therefore, the expression 'or proceeding' applies to a case where a suit has been decreed on grounds other than those mentioned in Schedule (b), proviso 2 and such a suit could be filed in areas to which the rent control enactment did not apply. Executions filed after the extension of the Act to such area will not be entertained unless the decree holder obtains the permission in writing from the Controller and satisfies the Court that the grounds specified in proviso 2, cl. (b) of Section 5 are also present. I fail to understand how the principle of distributive construction can be applied in the present case. The maxim red dendo singula singuhs applies where a sentence contains several antecedents and several consequents and they are to be read distributively each phrase being referred to its particular subject. If that principle were to be applied to the language of Section 13, it would read as follows :

'No suit .... by a landlord against a tenant ... in which the ground specified in the second proviso to cl. (b) of Schedule has been taken as a ground to such eviotion, shall be entertained by any Court, etc.'

'No proceeding .... shall be entertain. by any Court. . .'

which would be absurd

36. In my opinion, the clause beginning with the words

'In which the ground specified in the second proviso to cl. (b) of Schedule has been taken as a ground Jos such| eviction'

governs both suit and proceeding, and the application of Schedule 3 should be restricted only to those proceedings initiated in areas after the Act was subsequently extended to those areas, and not to those areas in which the order or Ordinance had already been applied before.

37. The last argument that remains to be noticed is whether on the expiry of the Act any action can be taken under the provisions of the expired Act. The rule is that, after the expiration of a statute, in the absence of a provision to the contrary, no proceedings can be taken on it and proceedings already taken ipso facto determine. See Halsbury, vol. 81, p. 512. It is suggested, however, that the proceedings are kept alive by virtue of the provision in Schedule 1. Sub-section (b) of Schedule 1 says :

'The expiration of this Act shall not...... (b) affect any liability incurred under this Act or any punishment incurred in respect of any contravention of this Act or any rule or order made there under.'

It is said that the liability incurred in the present case is the liability of the execution petition to be dismissed and this liability is kept alive by Schedule 1 (b) The section says 'liability incurred under this Act or any punishment incurred in respect of any contravention of this Act.' Liability is that condition of affairs which gives rise to an obligation to do particular thing to be enforced by action. It applies to a person who incurs an obligation which can be enforced by law. The question is: did the decree-holder in this case incur any such liability The word

''incur' means 'to become liable by act or operation of law'. In Waghela Rajsanji v. Shekh Masludin, 14 I. A. 89 : (11 Bom. 551 P. C.) the Judicial Committee of the Privy Council observed at p. 100 : ' Mnour' means 'to run into', but it is constantly used in the cense of 'meeting with,' 'of being exposed to,' 'of being liable to'.'

A person incurs a liability under the Act to be punished if he contravenes any of its provisions, and the punishment follows the liability. If he incurs the liability to be prosecuted he may incur the punishment prescribed by the Act. I cannot persuade myself to agree with the contention that the words 'liability incurred' should be understood as referring to the petition having incurred the liability to be dismissed. That would be straining the expression from its ordinary meaning. If anybody incurred any liability it was the Court which entertained the execution without the Controller's permission. In my judgment, therefore, Schedule 1 does cot save the expiration of the Act, and the only consequence is that the miscellaneous case started by the appellant under Schedule 7, Civil P. C., objecting to the maintainability of the execution on the ground that Schedule 3 of the Act was a bar, ipso facto terminated along with the Act.

38. To put my views in a nut shell, the Act has expired, and with it the objection raised by the judgment-debtor also fails. With all deference to my learned brothers, who take the contrary view, I am bound to dissent. I am in favour of giving a construction which will harmonise all the sections which appear to be repugnant to each other, without doing violence to the language employed by the Legislature. In this case, but for the leniency shown by the decree. holder in granting time to the judgment debtor to vacate the house, the writ of delivery which was first issued on 18-9-46 would have been executed. But the judgment-debtor took time again and again till 7-5-1917 when the execution petition was dismissed on part satisfaction. He represented to the Controller that he had no objection to vacate the house provided he was given time till 30-4-44 and he represented to the Court more than once that he would vacate the house. In these circumstances, to hold that the language of the Act justifies the Court in arriving at the conclusion that the execution petition is untenable for want of a permission from the Controller cannot be a true construction of the Act or the intention of the Legislature underlying it. I trust I have correctly interpreted the intention of the Legislature and if I am wrong in my interpretation, I have erred in the company of the great masters of Law.

39. In the result the appeal must be dismissed with costs.

40. Narasimham J.-Having given my anxious consideration to the differing judgments of my learned brothers, Das and Panigrahi JJ., I have come to the conclusion that the appeal must be allowed and (sic). 0. No. 247 of 1947 dismissed with costs.

41. All the three of us ate agreed that the House Rent Control Act, 1947 expired on 21.3-1960 and that the notification of the Government of Orissa (no. 2280-Dev. dated 25-2-1950) extending the said Act for one year more is invalid in view of the recent decision of the Federal Court in Jatindra Nath v. Province of Bihar, 1949 F. L. J. 225 : (A. I. R. (36) 1949 F. C. 175 :, 50 Or. L. J. 897) to the effect that the extension of the life of an Act by a notification of the Executive Government would amount to exercise of delegated legislative power and as such invalid. Therefore it may be taken as well established that the House Bent Control Act, 1947 (hereinafter referred to as the Act) is no longer in force in the State of Orissa.

42. The difference, however, between my learned brothers is mainly on the question as to whether this execution case (No. 247 of 1947) which was filed on 10-5-1947 when the Act was in force should be disposed of in this appeal or the basis of the law as it stood at the time of the filing of the execution case or else on the basis of the law as it stands now at the time of the hearing of the appeal. The Act was a purely temporary Act and the effect of the expiry of such an Act on pending proceedings is essentially a matter of construction: R. v. Wicks, (1946) 2 ALL E. R. 529. Section 21 expressly says that the expiration of the Act shall not affect any liability incurred under the Act. One view is that the word 'liability' occurring in Schedule 1 (b) means liability for punishment under the penal provisions of that Act (See Schedule 4). This construction not only narrows very much the meaning of the expression 'liability' but it overlooks the fact that cl. (b) of Section 21 also refers to punishment incurred in respect of any contravention of the Act. The 'liability incurred under the Act' and 'any punishment in respect of any contravention of the Act, 'have both been expressly stated in that clause and consequently the 'liability' must necessarily be other than the penalty contemplated by the Act. I would agree with my 'learned brother Das J. that 'liability' would include the liability to have the execution case dismissed for want of proper permit as required by Schedule 3 and that liability would, therefore, continue by virtue of Section 21 alone notwithstanding the expiry of the Act.

43. Out of respect for my learned brother Panigrahi J., I think it necessary to briefly give my reasons for my inability to agree with the other views expressed by him in his judgment. In Paras, 4 and 5 (paras. 23 and 24 of this report) of the judgment he has pointed that an Act should not be so construed as to affect pending proceedings in the absence of any express provision to that effect and that consequently E. 0. No. 247 of 1947 (out of which the present appeal arises) would not be in any way affected by any of the provisions of the Act. If I may say so with respect, the initial assumption that the said execution case was a pending proceeding' at the time of the commencement of the Act is incorrect. The Act was published in the Gazette on 21-3-1947. It was brought into force in the town of Cuttack by a notification dated 3-5-1947. Therefore after that day the Act validly came into force in the town of Cuttack. Execution Case No. 247 of 1947 was actually filed before the executing Court on 10-5-1947, seven days after coming into force of the Act. How can it be said that the said execution case was 'pending' on the date of the coming into force of the Act in Cutback town? It is true that there was a previous execution case (no. 130 of 1946) filed on 30-4-1946; but that was ultimately dismissed for default on 7-5 1947. Execution case NO. 247 of 1947 is a separate case filed three days later and it was never contended oven by the learned counsel for the respondent that the second execution case is a mere continuation of the first execution case. Such a contention cannot be seriously advanced because the first one was clearly dismissed for default on 7-5-1947 and limitation for filing a fresh execution case commenced from that date. If a second petition for execution of a decree after dismissal of the first execution petition is considered to be a mere continuation of the first petition cl. (5) of Article 182, Limitation Act, would be meaningless.

44. Presumably my learned brother Panigrahi J., considers that E. 0. No. 247 of 1947 should also be held to be a 'pending proceeding' because the Legislature passed a Validating Act (Orissa Act xxi [21] of 1947) on 12-7-1947 more than two months after filing of that execution petition. But if the provisions of that Validating Act are carefully scrutinised it will be found that they deal with acts done from 21-3-1947 till 3-5-1947 and validated the same by giving retrospective effect to the aforesaid notification dated 3 5-1947 from 21-8-1947 itself. But as regards any action taken under the Act after 3-5- 1947, no validation was necessary at all and Orissa Act xxi [21] of 1947 does not either expressly or by implication deal with those acts. Therefore, with great respect, I feel constrained to dissent from the view that E. C. No. 247 of 47 was a 'pending proceeding' when the Act was brought into force in Cuttack town on 3-6-1947.

45. I entirely agree with my learned brother Panigrahi J's observations regarding the effect of a new Act on a 'pending proceeding'. But any discussion about it is beside the scope of the present case.

46. The limited question for consideration is whether the Act would operate so as to deprive a decree-holder of a right which accrued to him prior to its commencement. It is true that ordinarily retrospective effect should not be given to an Act so as to affect vested rights which might have accrued to a decree-holder. But if there are express provisions in the Act which indicate that the Legislature deliberately interfered with decrees obtained prior to its commencement, the Court is bound to give such retrospective effect. The jurisdiction of the Orissa Legislature to legislate even in respect of decrees cannot be seriously questioned. The subject 'Civil Procedure is an item in the Concurrent Legislative List (item 4 of part I of List IIIl) and the Act was assented to by the Governor-General. Consaquantly Sub-section (2), Section 107, Government of India Act 1935 would apply and even if there is any repugnancy between any provision of the Act on the one hand and any provision of the Civil Procedure Code directing an executing Court to execute a decree without any modification or restriction the former would prevail.

47. An examination of some of the provisions of the Act shows that the Legislature clearly intended that the Act should apply to decrees passed prior to its commencement. In el. (a) of Schedule are the words 'whether in execution of a decree or otherwise'. These words were not found in the original House Rent Control Order, 1942. They indicate unmistakably that notwithstanding any decree for ejectment passed prior to the coming into force of the Act such a decree cannot be executed except in accordance with the provisions of Section 5. Similarly in Schedule 3 both the words 'suit' and 'proceeding' have been used. I entirely agree with my learned brother Das J. that a proceeding must include an execution proceeding. As an execution proceeding must be preceded by a decree and as Schedule 3 expressly forbids such a proceeding to be entertained in the absence of permit by a Controller it follows that in Section 13 also the Legislature deliberately interfered with a decree prior to the commencement of the Act.

48. Therefore though the Act cannot be said to apply to pending proceedings it must be held to apply to new execution cases filed after its commencement, and thereby affect decrees passed prior to its commencement.

49. As regards the construction of Sections 5 and 13 and the necessity of harmonising the two, I am in entire agreement with my learned brother Das J. Section 13 was newly inserted by the House Rant Control Ordinance, 1916 and it was not found in the original House Bent Control Order which remained in force from 1942 to 1946, Simultaneously with the insertion of Schedule 3 in the Ordinance a restriction was put on Schedule by the opening words 'subject to the provisions , of the Act'. There can be no doubt, therefore, that Schedule is subject to Schedule 3, and an exemption obtained under proviso 2 to Section 6 cannot dispense with the necessity of obtaining a permit under Schedule 3. I am, therefore, unable to accept the view that the two sections should be read 'as mutually exclusive and as applicable to two different sets of circumstances'. When a new section (s. 13) was deliberately inserted in the Ordinance of 1946 and in the Act of 1947 though there was then in existence Schedule requiring the obtaining of an exemption from a Controller and simultaneously with such insertion Section 5 was made 'subject to the other provisions of the Act' it will be against all well-established rules of statutory construction to say that Sections 5 and 13 are two independent sections mutually exclusive. It may be that as a matter of policy the Legislature wanted such double check on the eviction of a tenant-a first check at the time of obtaining an exemption Under Section 5 and a second check at the time of either instituting a suit for ejectment or filing an application for execution of an ejectment decree already obtained, under Schedule 3. However, unreasonable such double check may be it is not the function of the Court to question the wisdom of the Legislature.

50. It has been pointed out that if Schedule 3 is literally considered it will lead to 'a fatal and absurd course,' inasmuch as every time a proceeding is instituted permission from the Controller for the institution of such a proceeding will be necessary. It is further said that an order of dismissal of a suit for default, a petition for attachment before judgment, for discovery or inspection, would all be proceedings in the suit. I am, however, unable to accept the view that the expression 'proceeding' in Section 13 should be so widely construed as to include every proceeding after the filing of the execution petition or the suit as the ease may be. The word 'or' which connects the two words 'suit' and 'proceeding' is ordinarily disjunctive and it cannot be construed in a conjunctive sense unlets there are compelling reasons for taking that view. As pointed out by Lord Atkin in Brown & Co. v. V. T. J. Harrison, (1927) 96 L. J. K. B. 1025 : (137 L. T. 549),

'it is generally disjunctive, but it may be plain from the collocation of the words that it is meant in a conjunctive sense, and certainly where the use of the word as a disjunctive leads to repugnance or absurdity it is quite plain within the ordinary principles of construction adopted by the Court to give the word a conjunctive use.'

It will be reversing the process to give the expression 'or' a conjunctive meaning and then inferring an absurdity by such construction. If the normal rule of disjunctive construction of the word 'or' is adopted it seems plain that a permit Under Section 13 is required only at one stage; that is to say either at the stage of the institution of the suit for eviction or at the stage of filing a petition for executing of a decree for eviction already obtained. This aspect of the case has been fully discussed in the judgment of my learned brother Das J. with whom I am in entire agreement. But as on this point he has given his views in a somewhat guarded manner I would emphasise that a reasonable construction of Schedule 3 by interpreting the word 'or' in a disjunctive sense would lead to no absurdity and would be in consonance with the true intention of the Legislature.

51. In para. 14 (para. 35 of this report) of the judgment of my learned brother Panigrahi J. occur the following passages:

'In my judgment, therefore, the expression 'or proceeding' applies to a case where a suit has been decreed on grounds other than those mentioned in Schedule (b), second proviso, such a suit could be filed in areas to which the Bent Control enactment did not apply. But executions filed after the extension of the Act to such areas will not be entertained unless the decree-holder obtains the permission in writing from the Controller and satisfied the Court that the grounds specified in proviso 2. cl. (b) of Schedule are also present.'

* * * * *

'The application of Schedule 3 should be restricted only to those proceedings initiated' in areas after the Act was subsequently extended to those areas, and not to those areas in which the Order or Ordinance had already been applied before.'

52. These passages clearly indicate that inspite of his strongly expressed views against construing Schedule 3 so as to interfere with vested rights already obtained under a decree and against construing the expression 'proceeding' as including an 'execution proceeding' my learned brother himself has been obliged to construe Schedule 8 as applying to some execution proceeding and as interfering with vested rights under some decrees. Thus, when it is conceded that Schedule 3 must apply to some execution proceedings and would also affect vested rights under a decree there seems to be no logical reason for restricting it to those areas where the Order and the Ordinance were not in force and the Act was brought into force for the first time. With great respect to my learned brother, I may say that there is no justification in the language of Schedule 3 or of Schedule to support such a narrow construction. My learned brother would perhaps strain the language of the sections in view of the supposed unreasonableness and hardship. But with respect, I consider that the primary rule of construction is to gather the intention of the Legislature from the language used and give full effect to it irrespective of the supposed consequences.

53. In other respects, I am in entire agreement with the judgment of my learned brother Das J. and therefore, think it unnecessary to discuss the other points raised in this appeal.

54. By the Court. - In accordance with the majority view, the order of the Court is that the appeal is allowed and E. C. No. 247/47 is dismissed. In the circumstances, the appellant will have no costs at any stage of the proceedings, here or in the Courts below.


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