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Mehta Keshavlal Pragji Vs. Bhatia Dwarkadas Gokaldas - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1969)10GLR857
AppellantMehta Keshavlal Pragji
RespondentBhatia Dwarkadas Gokaldas
Cases ReferredRupchand Hemandas Punjwani v. Heera Jawaharmal Mirchandani
Excerpt:
- - 2019. since the defendant failed to comply therewith he filed the suit against the defendant. that the defendant failed to prove any agreement that he was not liable for eviction. the latter part of the proviso clearly appears to be an exception to the proviso itself and we shall conveniently refer to it as such for the sake of brevity. though the arguments came to be advanced on the first point, their lordships of the supreme court observed that much though the arguments were interesting and much could be said on both sides, they need not be considered in view what they had decided on the second point. but while doing so, the supreme court distinguished those cases by observing that both the high court as well as the supreme court in the previous decisions were not called upon to.....n.g. shelat, j.1. the plaintiff-respondent filed a regular civil suit no. 20 of 1963 in the court of the civil judge (j.d.) at kalawad for recovering possession of the suit shop together with mesne profits and costs of the suit against the appellant-original defendant inter alia alleging that he had taken the suit shop under a rent-note dated 20th october 1960 on a monthly rent of rs. 33/- and that he had agreed to hand over possession thereof when he required the same for selling or mortgaging or at any time when he required for his own purposes by giving him one month's notice. the plaintiff required the said shop for raising a loan of rs. 10, 000/- by creating a mortgage with possession thereon and that for that purpose be served him a notice dated 8th january 1963 terminating his.....
Judgment:

N.G. Shelat, J.

1. The plaintiff-respondent filed a Regular Civil Suit No. 20 of 1963 in the Court of the Civil Judge (J.D.) at Kalawad for recovering possession of the suit shop together with mesne profits and costs of the suit against the appellant-original defendant inter alia alleging that he had taken the suit shop under a rent-note dated 20th October 1960 on a monthly rent of Rs. 33/- and that he had agreed to hand over possession thereof when he required the same for selling or mortgaging or at any time when he required for his own purposes by giving him one month's notice. The plaintiff required the said shop for raising a loan of Rs. 10, 000/- by creating a mortgage with possession thereon and that for that purpose be served him a notice dated 8th January 1963 terminating his tenancy and demanding possession of the suit shop from Maha Vad 30 of S.Y. 2019. Since the defendant failed to comply therewith he filed the suit against the defendant.

2. The defendant resisted the suit by raising various contentions as per his written statement at Exhibit 7. While 'admitting to have passed the rent-note in respect of the suit shop in favour of the plaintiff, he contended that he was not entitled to recover possession thereof on the ground alleged by the plaintiff in as much as he had never refused to execute a rent note in favour of the mortgagee and that he was ready and willing to execute the same in his favour. He further contended that he had spent a large sum in repairing the suit shop and also in getting electric connection and that it was agreed between them that he shall not be evicted till be occupied the same. He also contended that the rent note was not admissible in evidence as it was not registered and that the suit was not maintainable thereon.

3. Various issues were accordingly raised by the trial Court as per Exhibit 11 and in its opinion the respondent was entitled to a decree for eviction as he had proved his claim; that the notice was legal; that the defendant failed to prove any agreement that he was not liable for eviction. He, however, did not decide the question relating to the amount said to have been spent by the defendant in getting the shop repaired and also in getting electric fittings in the shop. In the result, it passed a decree directing the defendant to handover vacant possession of the suit shop decribed in Exhibit 14 on or before Kartik Sud 1st S.Y. 2020. It further directed the defendant to pay costs of suit of the plaintiff and bear his own. The future mesne profits were to be ascertained on an application made by the plaintiff under Order 20 Rule 12 of the Civil Procedure Code. Feeling dissatisfied with that order passed on June, 1963 by Mr. C.A. Bhojani, Civil Judge, Junior Division, Kalawad, the defendant filed Regular Civil Appeal No. 124 of 1963 in the Court of the District Judge at Jamnagar

4. During the pendency of this appeal, since the Act LVII of 1947 hereinafter to be referred to as 'the Rent Act' was made applicable to Kalawad with effect from 1st January, 1964, a point was raised by the defendant appellant that the matter should be considered under the provisions of the said Act. According to him, as long as he was ready and willing to pay the rent In respect of the suit premises, the Court was not entitled to pass any decree for eviction against him having regard to Section 12(1) of the Act. That contention was negatived by the learned Assistant Judge who heard the appeal. He found that the Act had no retrospective effect and that, therefore, the appeal cannot be decided in the light of the provisions of the new Act which came to be applied during the pendency of the appeal. In respect of the other points arising in the appeal, he found that the respondent was entitled to recover possession and that there was no agreement much lees any condition not to evict him as alleged by the defendant in the suit In the result the appeal came to be dismissed and the judgment and decree passed by the trial Court were confirmed. The defendant-appellant was directed to pay the costs of the appeal of the respondent and bear his own. Feeling dissatisfied with that order passed on 18th September, 1964 by Mr. K.R. Marjadi, Assistant Judge, Jamnagar, the defendant has come in appeal before this Court.

5. This second appeal came up for hearing before our learned Brother Sompura J, and he has referred the same for decision by a Division Bench of this Court. It is that way that this Second appeal has come up before this Court for decision.

6. The contention of Mr. Dave, the learned Advocate for the appellant was that now that the Rent Act was applied to the whole of Gujarat with effect from 31st December 1963 and later on by a notification dated 11th June 1964 Parts II and III came to be applied to the area where the suit premises were situated, the defendant-tenant should be given benefits arising out of the Act. According to him, with the application of Part II of the Act during the pendency of this appeal, namely, on 11-6-64 when Part II came to be applied to the said area, the law as it prevailed then should apply to the suit from which this appeal arises. He further contended that Section 12(1) of the Act is so worded that by itself and independent of any other provisions of the Act, it must be taken to be retrospective in character and that way it would govern the appeal it being a continuation or a rehearing of the suit and con sequently in a suit of this character, on his being ready and willing to pay rent, no decree of eviction can be passed by the Court against the tenant. He sought support from the decision in the case of Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha : [1962]2SCR159 . This contention was sought to be repelled by Mr. Desai, the learned advocate for the respondent, by saying that even if Section 12(1) of the Act was restrospective in character, it is not to be read in isolation and must be read in conjunction with the other provisions of the Act simultaneously applied to that area. It was, besides, urged that Section 12(1) of the Act stands controlled and governed by an Exception to the Proviso to Section 50 of the Act, whereby appeals arising from decrees passed before the coming into operation of this Act, namely, Act No. LVII of 1947 have to be decided and disposed of as if this Act had not been passed. In support thereof he invited a reference to the decision of the Supreme Court in the case of Chandrasinh Manibhai v. Surjit Lal Ladhamal Chhabda 53 Bom. L.R. 532. Reliance was also placed on two other decisions one of the Division Bench of the High Court of Bombay in the case of Rupchand Hemandas Panjwani v. Heera Jawaharmal Mirchandani 69 Bom L.R. 587 and the other one of this Court in Second Appeal No. 74 of 1962 given on 6-11-68 by Desai J.

7. Before we deal with the point raised in this appeal, we may set out certain relevant facts. The Act LVII of 1947 came into operation with effect from 13th February 1948 in the then State of Bombay and by reason of Section 50, two other Acts such as Bombay Real Restriction Act, 1939 and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1944 came to be repealed. It appears that in the Saurashtra region, Saurashtra Rent Control Act XXII of 1951 was in force and it came to be repealed by the Gujarat Act XVII of 1963, and at the same time the Bombay Rent Control Act LVII of 1947 was applied with effect from 1st January 1964. While Parts I and IV of the Act came to he applied to the entire State of Gujarat which included Saurashtra, Parts II and III were later on applied to the Saurashtra area by a Notification dated 10-4-64. It was published on 1-11-64. In other words, this Act LVII of 1947 was applied to the area from which this appeal arises, during the pendency of the appeal before the District Court at Jamnagar, It would, thus, appear that when the suit was filed on the strength of a rent-note Ex. 14 for recovering possession of the suit premises, by terminating the tenancy by giving a notice dated 8-1-63, and even at the date when the decree was passed, it was governed by the ordinary provisions of law, and not even by the provisions of Rent Control Act then applicable to Saurashtra.

8. It has been conceded by the learned advocates appearing for the parties before us that Section 51 has no application as Part 11 of even the Saurashtra Rent Control Act was not applied to that area, when this Act LVII of 1947 was applied and thus the present proceedings were not governed by that Act. We have, therefore, to consider the effect of Sections 12 and 50 of the Act and find out as to whether Section 12(1) would govern this appeal which was pending at the time when Parts II and III came to be applied in that area.

9. Now Section 12(1) provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act. The words 'A landlord shall not be entitled to the recovery of possession of any premises...' appear to be of a declaratory character and are said to be suggestive of the fact that the Court has to determine as to whether the landlord was entitled to recover possession of any premises at the time when the decree for possession is required to be passed. The stage for application of this section would, therefore, arise as urged by Mr. Dave, either in a suit, or in appeal, at the time any such decree for possession has to be passed by the Court the appeal being a continuation of the suit. In other words, this Sub-section (1) of Section 12 of the Act is retrospective in character and has to be applied as such in the appeal which was pending before the first appellate Court at the date when this Act came to be applied. We may next set out the other relevant provisions contained in Section 50 of the Act, which according to Mr. Desai control the applicability of other provisions of the Act to any suits or appeals as the case may be. Section 50 runs thus:

50. The Bombay Rent Restriction Act, 1939, and the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, are hereby repealed:

Provided that all suits and proceedings between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part II apply and all suits and proceedings by a manager of a hotel or an owner of a lodging house against a lodger for the recovery of charges for, or possession of, the accommodation provided in a hotel or lodging house situate in an area to which Part III applies, which are pending in any Court, shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under this Act or shall be continued in such Courts, as the case may be, and all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings.

Nothing in this proviso shall apply to execution proceedings and appeals arising out of decrees or orders passed before the coming into operation of this Act and such execution proceedings and appeals shall be decided and disposed of as this Act had not been passed:

The latter part of the proviso clearly appears to be an exception to the proviso itself and we shall conveniently refer to it as such for the sake of brevity. A plain reading of this proviso as also exception therebelow would show that while the Act is given a retrospective effect to areas where Part II applies, in so far as all suits and proceedings pending or all suits and proceedings that may be filed thereafter, are concerned, and that part of the provision is not applied to execution proceedings and appeals arising out of decrees or orders passed before the coming into operation of this Act and such execution proceedings and appeals have to be decided and disposed of as if this Act meaning Act LVII of 1947 had not been passed. Apart from authority, the use of word 'all' before suits and proceedings and again later on the use of word 'all' before suits and proceedings by a manager of a hotel etc. indicate that the intention of the Legislature was to give effect of this new Act to all suits arising out of the areas where provisions of Part II were applied. It did not only refer to suits or proceedings arising out of the two Acts which came to be repealed by the first part of Section 50 of the Act, but by reason of its being an independent provision as it were, it covers all types of suits provided they were suits pending then under any law. The retrospective operation of the Act was thus made to such pending suits. But a similar effect was not extended further to appeals arising out of any decrees or orders passed before this Act came into operation and they have been dealt with as if no such Act had been passed, as would appear from the exception made thereto under Section 50 of the Act.

10. That takes us to the consideration of the decision of the Supreme Court in the case of Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Singh : [1962]2SCR159 . The facts in that case were that on the expiry of the period of tenancy on 14th March, 1967, the landlord filed a suit on 25th April 1957 for possession of the premises against the tenants in the Court of the Joint Civil Judge (Junior Division), Erandol. Meanwhile, under Section 6 of the Rent Control Act, 1947 a notification was issued, applying Part II of the Act to the area where the property was situated. The appellants claimed protection of Section 12 in Part II of the Act which deprived the landlord of the right of possession under certain circumstances. The trial Court negatived that claim of the tenant and passed a decree for possession against them. A revision application filed against that order came to be dismissed by the High Court of Bombay and it was against that order that matter had come up before the Supreme Court. The Supreme Court set out two questions which came to be raised before it. They are (!) whether by virtue of the first proviso to Section 50 of the Act, all the provisions of Part II including Section 12 were not expressly made applicable to all suits; and (2) whether by virtue of Section 12(1) of the Act, which applied independently by the extension of the Act to the area where the property is situate, the suit was not rendered incompetent and the landlord deprived of his remedy for possession. Though the arguments came to be advanced on the first point, Their Lordships of the Supreme Court observed that much though the arguments were interesting and much could be said on both sides, they need not be considered in view what they had decided on the second point. The effect of the proviso of Section 50 was consequently not considered at all. However, while considering the second point, it was required to consider the effect of two previous decisions which held that Section 12 was prospective except in so far as that was limited to the suits referred to in provisos to Section 50 of the Act. The first was a Full Bench decision of the High Court of Bombay in the case of Nilkanth Ramchandra v. Rasiklal reported in 51 Bom.L.R. 280. The second was a decision of the Supreme Court in the case of Chandrasinh Manibhai v. Surjitlal Ladhamal Chhabda reported in 53 Bom L R. 532. By this latter decision the view of the Full Bench in Nilkanth's Case was approved, and even after referring to those provisions held that the Act was given retrospective operation only to a limited extent, and execution proceedings and appeals were excluded from this effect and were to be governed by the provisions of law in force at the time when the decrees were passed. In that way, Their Lordships of the Supreme Court held that provisions of the Act were not applicable to appeals pending at the time when the Act came into force. It may be said here that these decisions related to a similar question as has arisen before us viz., as to whether pending appeals were affected by the provisions of the new Act in view of an exception to the proviso to Section 50 of the Act. We may also observe that none of those decisions can be said to have been overruled, except perhaps in respect of Section 12(1) of the Act alone being of a retrospective character. But while doing so, the Supreme Court distinguished those cases by observing that both the High Court as well as the Supreme Court in the previous decisions were not called upon to interpret Sub-section (1) of Section 12 of the Act and that they were dealing with appeals arising oat of decrees already passed, and that the observations that Section 12 was prospective were made with reference to Sub-sections (2) and (3) and not with respect to Sub-section (1), which did not even find a mention in these judgments. Then the Supreme Court has observed as under:

The question then was whether Section 12 by itself or read with the proviso to Section 50 was applicable retrospectively to appeals. That is not the question which has arisen here.

In other words, they did not consider the question as to whether Section 12 has to be read subject to the proviso to Section 50 of the Act at any rate so far as it involved its retrospective applicability to appeal since that question did not arise in the matter before them. It would not therefore be an authority which can govern this appeal.

11. Then they have referred to Section 12(1) of the Act and have observed as under:.Section 12(1) enacts that the landlord shall net be entitled to recover possession, and not 'no suit shall be instituted by the landlord to recover possession'. The point of time whets the sub-section will operate is when the decree for recovery of possession would have to be passed. Thus, the language of the sub-section applies equally to suits pending when Part IT comes into force and those to be filed subsequently. The contention of the respondent that the operation of Section 12(1) is limited to suits filed after the Act comes into force in a particular area cannot be accepted. The conclusion must follow that the present suit cannot be decreed in favour of the respondent. The decisions of the High Court and the Court of First Instance are thus erroneous, and must be set aside.

It would, thus, appear plain that the point No. 1 raised before them was not decided and it was only the second point which came to be decided by the Court. On reading Section 12(1) of the Act, the Supreme Court found that it was retrospective in character and it applied to suits pending when Part II came into force and to those suits which come to be filed sub-sequently. In other words, the necessity of referring to the proviso to Section 50 did not arise-it being a pending suit when Part II was applied. Nor did if consider the question as to whether Section 12 by itself or read with proviso to Section 50 was to be applicable retrospectively to appeals. The question that arises before this Court is as to whether the provisions of the Act have to be applied retrospectively to the pending appeals and such a question was not at all decided by the Supreme Court in this decision and it cannot, therefore, be applied to the facts of the present case. In fact such a question was kept open.

12. It was urged that appeal is a continuation or a rehearing of a suit, and if Section 12(1) was retrospective in character and applied to pending suits, it has to be applied to pending appeals also. Besides, the substantive provision if it reads clearly giving retrospective operation, it should prevail and the decision of the Supreme Court in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha (supra) would govern the appeal. We may refer at this stage to the decision of the Full Bench in the case of Nilkanth Ramchandra Chandole v. Rasiklal Mulchand Gujar reported in 51 Bom. L.R. 280, where after observing that ordinarily the provisions of the Act when applied would be prospective in character unless the Legislature has really intended to apply and give retrospective effect either to any suits or appeals as the case may be, it has observed as under:

It is a well-established canon of construction of every statute that ordinarily every legislation is prospective in its effect and it does not affect vested rights. But it is always competent to the Legislature to make any piece of legislation retrospective. If, however, the Legislature intends to do so, it must do so by a clear intention or by necessary implication. In order to decide whether a new statute is retrospective and if so to what extent, the Court must look at the relevant sections.

Under Section 7 of the Bombay General clauses Act, 1904, no pending legal proceedings can be affected by a repeal of an Act unless there is a different intention in the statute itself.

A Court of law must always see that as far as possible the obvious intention of the Legislature is not defeated by a construction which it puts upon a statute passed by the Legislature. On the other hand it is equally clear that a Court of law should not put itself in the shoes of the Legislature. If the language of the statute is plain and clear, the intention of the Legislature can only be urged from the words and expressions it has used in the Act which it has passed. If there be any ambiguity, and if more than one construction be possible, the Court should lean in favour of that construction which gives effect to the Legislature's intention rather than that which leads to difficulties and anomalies.

If the Legislature retrospectively affects pending proceedings, it would be the duty of the Court of appeal to apply to an appeal pending before it the law prevailing at the date of the appeal. The mere passing of the decree does not preclude a Court of appeal from taking into consideration the change in the law effected after the passing of the decree.

13. Those observations lay down correct principles governing the interpretation and construction of any provisions of the Act and we can well keep in mind in considering the applicability of Section 12(1) independently of proviso and Exception to Section 50 of the Act. In the first place, the provisions of the Act have to be looked as a whole and not any one section in isolation more particularly when the Court is called upon to give effect to the intention of the Legislature. We cannot shut our eyes to the proviso and Exception therebelow in Section 50 of the Act. Besides, where any special provision exists, it has to be given effect to even by overriding the general provisions of the Act. In our view, therefore, Section 12(1) is a general provision and when it is required to be applied to any suits or proceedings etc., it has to be considered in the light of the other provisions of the Act such as contained in the proviso and the exception therebelow to Section 50 of the Act. In fact the proviso, and the Exception carved cut therefrom, in so far as appeals and execution proceedings are concerned, can be said to be provisions clearly setting out specifically as to how the pending suits and pending appeals etc. have to be dealt with by the Courts. When all these provisions of the Act are applied simultaneously, Section 12(1) cannot be read in isolation and must be considered in the light of Section 50, so as to give effect to the intention of the Legislature in enacting such a proviso and the Exception therebelow in Section 50 of the Act. In fact the Supreme Court in the case of Chandrasinh Manibhai v. Surjit Lal Ladhamal Chhabda proceeded to discuss by saying that the decision rested on the construction of Sections 12 and 50 of the Act LVII of 1947. In other words, both these provisions have to be read together, and a construction which is reasonable and the one intended by the Legislature has to be given. We find also support for this view from the decision in the case of Rupchand Hemandas Panjwani v. Heera Jawaharmal Mirchandani 69 Bom. L.R. 587 where a similar question had arisen and the Division Bench of the Bombay High Court was called upon to consider the effect of the decision of Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha A.I.R. 1961 Supreme Court 1596. It took the view that the second part of the proviso (viz. the Exception to the proviso in Section 50) is an extension of the proviso which in fact is a provision of substantive character in the Act and they cannot, therefore, be ignored and have the applicability of Section 12{1) considered in isolation. At any rate, the Supreme Court does not go so far as to decide that Section 12(1) would have a retrospective effect even in respect of appeals and execution proceedings contemplated in the extension of a proviso to Section 50 of the Act.

14. Now it is true, as urged by Mr. Dave, that an appeal is a continuation of the suit or that it can be said to be a re-bearing of the suit by the appellate Court, and that, therefore, whenever any law is made applicable while any such suit or appeal is pending before the Court, that law could govern the matter, and that way with this Act coming into force, the provisions contained therein may be given effect to even at the appellate stage. He also sought support for this proposition from the case of Garikapati Veeraya v. N. Subbiah Choudhry and Ors. : [1957]1SCR488 , and the case of Mohanlal Chunilal Kothari v. Tribhovan Haribhai Tamboli : [1963]2SCR707 . But that would depend upon the fact that while applying any such new enactment or law as the case may be, the Court has to see as to whether there has been any other provision contained therein which limits the application thereof to any suits or appeals as the case may be. If it does, as the Legislature is entitled to do, it has to be given effect to. It cannot be ignored by the Court. Even if any anomalous positions were to arise, it would not be for the Courts to solve them if the intention of the Legislature is otherwise clear and unambiguous emerging from the definite provisions of the Act. It was pointed out by Mr. Dave that in appeal if the appellate Court while deciding the appeal set aside a decree for possession passed by the trial Court and remands the suit for retrial, the suit would that way be one which could be called pending before the trial Court and would have to be dealt with under the provisions of the new Act though applied at the stage of the pending appeal which was not to be so governed. Such a position may not be a common affair. It would be a rare position. But what appeared to the Legislature was that suits of the kind referred to in the proviso if pending, must be governed by the new Act provided Part II was applied. But in doing so, it wisely carved out an exception by saying that if once the decrees or orders are passed and that the appeals arise thereform before the coming into operation of the Act, those appeals shall be decided and disposed of as if new Act had not been passed. In other words, they would be dealt with under the law that prevailed at the date when the decrees were passed. That was perfectly a reasonable way of looking at things and the Legislature has rightly and very carefully made the provision to that effect. A finality to the rights of the parties was given if they were. already decided in suits. In our view, therefore, the provisions contained in Section 12(1) have to be considered in the light of the proviso and the Exception therebelow contained in Section 50 of the Act and as provided in the Exception the Act would not apply to the pending appeals and execution proceedings. They are required to be decided and disposed of as if the Act had not been passed. Similar question has arisen in the case of Rupchand Hemandas Punjwani v. Heera Jawaharmal Mirchandani 69 Bom. L R. 587, and various arguments which came to be canvassed were negatived. We do not make reference to the same since they are not sought to be availed of and placed before us. With respect however, we agree with the decision contained therein. In Second Appeal No. 74 of 1962 which came to be decided by our learned brother Desai J. on 6-11-1968 arising from the Act applied in the Saurashtra area, it was similarly held that the provisions contained in Section 12(1) would not be available to the tenant-appellants in the appeals pending before the Court.

15. In the result, therefore, this appeal is not affected by the provisions of the Act LVII of 1947 and the decree passed by the trial Court and confirmed by the appellate Court shall stand. The appeal fails and is dismissed with costs.


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