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Khimchand Hargovandas Shah Vs. Ganchi Valibhai Gababhai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1966)7GLR895
AppellantKhimchand Hargovandas Shah
RespondentGanchi Valibhai Gababhai
Cases ReferredChandrasinh Manibhai v. Surjit Lal Chhabda
Excerpt:
- .....baroda and was no. 26 of 1958. after the suit was filed part ii of bombay rents, hotel and lodging house (control) act, 1947 (bom. act lvii of 1947) was applied to masar road as when the act was enacted, it was not applied area. but subsequently on 23rd october 1958, the state government extended part ii of the act to the village masar road. both the below have held that in view of the provisions of section 12 in parti i act, the suit was liable to be dismissed and thereupon dismissed the suit.2. the appellate court relied upon section 50 of the act which as follows:50. the bombay rent restriction act, 1939, and the bombay rents, hotel and lodging house rates (control) act, 1944, are hereby repealed: provided that all suits and proceedings between a landlord and a tenant related.....
Judgment:

V.B. Raju, J.

1. This Second Appeal arises out of the suit filed by the Appellant for possession of a Ghabhan (building site) in the Village Masar Road. The suit was filed in the Court of the Civil Judge (Junior Divison) Padra, District Baroda and was No. 26 of 1958. After the suit was filed Part II of Bombay Rents, Hotel and Lodging House (Control) Act, 1947 (Bom. Act LVII of 1947) was applied to Masar Road as when the Act was enacted, it was not applied area. But subsequently on 23rd October 1958, the State Government extended Part II of the Act to the village Masar Road. Both the below have held that in view of the provisions of Section 12 in Parti I Act, the suit was liable to be dismissed and thereupon dismissed the suit.

2. The Appellate Court relied upon Section 50 of the Act which as follows:

50. The Bombay Rent Restriction Act, 1939, and the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1944, are hereby repealed: Provided that all suits and proceedings between a landlord and a tenant related the recovery of fixing of rent or possession of any premises to which the pro of Part II apply and all suits and proceedings by a manager of a hotel or and of a lodging house against a lodger for the recovery of charges for, or poses of, the accommodation provided in a hotel or lodging house situate in an which Part III applies, which are pending in any Court, shall be transferred continued before the Courts which would have jurisdiction to try such proceedings under this Act or shall be continued in such Courts as the ca be, and all the provisions of this Act the rules made thereunder shall apply such suits and proceedings.

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

Provided further that-

(a) every order passed or act done by the Controller under Part IV Bombay Rents. Hotel Rates and Lodging House Rates (Control) Act, 1944, an order or act deemed to have been passed or done under that part shall be to have been passed or done under this Act; and

(b) all proceedings pending before the Controllers under Part IV of the shall be transferred to and continued before the Controllers appointed under Act as if they were proceedings instituted before the Controllers under this Act.

3. By Section 50 of Act LVII of 1947, the Bombay Rent Restriction As and the Bombay Rents, Hotel Rates and Lodging House Rates Act, 1944 were repealed and the proviso was enacted for the tram certain suits and proceedings relating to the recovery and fixation and Part II of Act LVII of 1947 was applied. The expression 'to the provisions of Part II apply' would mean 'to which proviso Part II applies when the Act is enacted'. The expression used 'to which the provisions of Part II may be extended or may be a Section 50 therefore does not apply to suits remaining in arrears when of Act LVII of 1947 had been extended or applied i.e. Section 50 was apply to the present suit and therefore Section 12 also which in Pa the Act would not apply. Moreover, as held by Their Lord the Supreme Court in Chandrasinh Manibhai v. Surjit Lal Chhabda 53 B. 1 R. p. 532, Section 12 is not retrospective. Therefore the lower Courts were wrong in holding that Section 12 was application the facts of this case and deciding the case on that basis. The in appeal is therefore set aside. The appellate Court is asked to the matter on the basis that Section 12 is not applicable. No order as to costs.


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