Akbar S. Sarela, J.
1. This civil revision application is against a decree for eviction passed against the applicant who was the original defendant. The decree was passed under Sub-section (3)(a) of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereinafter referred to as the Bombay Act) and the short point for consideration is whether that provision applied or whether Sub-section (3) of Section 12 of the Saurashtra Rent Control Act, 1951, (hereinafter referred to as the Saurashtra Act) applied.
2. The material facts are not now in dispute. The applicant was the tenant of the opponents in the premises in question at Rs. 12/- per month. The tenancy was from the 18th of the month to the 17th of the next month according to the British Calender month. On 8-2-1963 the opponents gave a notice to the applicant calling upon him to vacate the premises at the end of 17-3-1963. On the date of the notice the rent in arrears was Rs. 133. 13 which were the arrears for more than six months. By that notice he was called upon to pay besides being called upon to vacate. There was no compliance by the applicant to these demands in the notice and the suit was filed on 7-5-1964. The applicant deposited arrears of rent in Court on the first date of hearing. It was contended in the Courts below that the applicant having deposited the arrears on the first date of hearing cannot be evicted. In support of that contention reliance was placed on Sub-section (3) of Section 12 of the Saurashtra Act to which further reference will be made presently. The answer on behalf of the opponents was that Sub-section (3)(a) of Section 12 of the Bombay Act applied and thereunder the Court must pass a decree for eviction. Both the lower Courts accepted the opponents submission and decreed the suit for possession.
3. To appreciate the submission made it is necessary to refer to certain facts and the relevant provisions of the law. On the date of the notice that is on 8-2-1963 and on the date on which the tenancy was terminated that is on 17-3-1963 the Saurashtra Act was in force in that area. That Act was repealed with effect from 31-12-1963 by the Gujarat Act No. 57 of 1963 and by that Gujarat Act, the Bombay Act ( The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947) was extended to the area in question as from that date that is from 31-12-1963. Therefore, at the time the suit was filed the Bombay Act was in force in the area. Now, Sub-sections (1) and (2) of Section 12 of the Saurashtra Act and Sub-sections (1) and (2) of Section 12 of the Bombay Act are in identical language. They read as under:
12(1). A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay 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.
(2). No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882.
But in 1963 Sub-section (3) of Section 12 of the Bombay Act was different from Sub-section (3) of Section 12 of the Saurashtra Act. Sub-section (3) of the Saurashtra Act read as under:
(3). No decree for eviction shall be passed in any such suit if, at the first hearing of the suit, the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit.Sub-section (3) of Section 12 of the Bombay Act read as under:
(3)(a). Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in Sub-section (2), the Court may pass a decree for eviction in any such suit for recovery of possession.
(b) In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.
Therefore, if the applicant was entitled to the benefit of the provisions contained in Sub-section (3) of Section 12 of the Saurashtra Act as contended by him then the payment on the first date of the hearing which he made would save him from eviction. If, however, he was not entitled to the benefit of that provision and the provisions of Sub-section (3)(a) of Section 12 of the Bombay Act were attracted a decree for eviction must be passed. This position is not in dispute and therefore the short question is whether the applicant was entitled to the benefit of the provisions of Sub-section (3) of Section 12 of the Saurashtra Act.
4. Mr. Suresh M. Shah, who argued the matter on behalf of the applicant, contended that on the termination of tenancy of the applicant, the applicant became a statutory tenant as from 18-3-1963 and as from that date a right in terms of Section 12(3) of the Saurashtra Act became vested in him namely the right to remain in possession and not to be evicted by a decree if he deposited in Court on the first date of hearing all arrears. This vested right, he argued, was saved by Section 51 of the Bombay Act which section was introduced in the Bombay Act as from 31-12-1963 when the Saurashtra Act was repealed and the Bombay Act was extended to the Saurashtra area. In view of this saving provision to which more detailed reference will be made later, according to Mr. Shah the right which the applicant had acquired under Sub-section (3) of Section 12 of the Saurashtra Act on the termination of his contractual tenancy would continue to be available to him even after the Saurashtra Act was repealed and that right would not be affected by the provisions of Section 12(3)(a) of the Bombay Act. In the alternative his argument was that even if the right which Section 12(3) of the Saurashtra Act gave him namely the right to resist eviction by depositing all arrears on the first date of hearing was not a vested right as contended by him and that he cannot save himself from eviction on that ground, even then, according to him, the applicant having expressed his willingness to pay the standard rent and permitted increases due to him his case would be governed by Sub-section (1) of Section 12 and not Sub-section (3)(a) of Section 12 of the Bombay Act and, therefore, in view of the said Sub-section (1) the landlord shall not be entitled to recovery of possession. In the further alternative his argument was that if Sub-section (1) of Section 12 of the Bombay Act did not apply and his case is to fall under Sub-section (3) even then it would fall not under Clause (a) of that sub-section but under Clause (b) because in this case the rent was not payable by the month and therefore one of the necessary conditions for the application of Clause (a) was not satisfied. These are the only submissions made by Mr. Suresh M. Shah. Mr. H. K. Gandhi, who appeared for the opponents-landlords, submitted that there was no such vested right as claimed on behalf of the applicant and the case is governed by the provisions of Sub-section (3)(a) of Section 12 of the Bombay Act. Ho contended that were Sub-section (3) of Section 12 of the Bombay Act applied there was no scope for invoking the provisions of Sub-section (1) of that section. As regards the contention that as between the Clauses (a) and (b) of Sub-section (3) of Section 12 it was Clause (b) that was attracted here, his reply was that not only no contention had been taken in the lower Court that the rent was not payable by the month but that the evidence was sufficient to show that it was so payable.
5. It is necessary first to notice Section 51 of the Bombay Act. By that section certain Acts including the Saurashtra Rent Control Act, 1951, were repealed. Then there are two provisoes. Under the first proviso such repeal shall not affect the several matters set out in the four clauses of that proviso and Mr. Shah relies on Clause (ii) which reads:
such repeal shall not:affect any right, privilege, obligation, or liability acquired, accrued or incurred under any law so repealed;
The second proviso states that subject to the preceding proviso, anything done or any action taken under any such law, including any notification, order, notice or receipt issued or agreement made, shall be deemed to have been done, taken, issued or made under the corresponding provisions of this Act and shall continue in force accordingly, unless and until super-seded by anything done or any action taken under that Act. The argument is that Sub-section (3) of Section 12 of the Saurashtra Act confers a right on the tenant to pay arrears on the date of the first hearing of the suit and save himself from eviction, and that right is an acquired or accrued right which is saved by the aforesaid Clause (ii) in the first proviso to Section 51. The short question therefore is whether Sub-section (3) of Section 12 of the Saurashtra Act confers a right and if so whether the right claimed by virtue of that sub-section can be called an acquired or accrued right generally referred to as a vested right.
6. It is necessary now to examine the scheme of Section 12 of the Saurashtra Act. The three sub-sections of that section have been earlier set out. Now, under the general law a landlord is entitled to recover possession from his tenant on the proper termination of the contractual tenancy and once the tenancy is terminated the tenant is bound to put the landlord into possession of the premises. (See Section 108(q) of the Transfer of Property Act). There arises, as the Supreme Court observes in Punjalal v. Bhagwatprasad IV G.L.R. 37 at page 43, a right to possession and if possession is not handed over then a right to recover possession. It is this right to recover possession which is restricted by Sub-sections (1) to (3) of Section 12 of the Saurashtra Act. Sub Section (1) contemplates a case where there is no default or breach of any kind by the tenant either in respect of payment of standard rent or permitted increases or in respect of the observance of other conditions of the tenancy. Then the mere fact of termination of the contractual tenancy by the landlord is not enough to entitle him to recover possession. So long as the tenant observes the conditions laid down by that sub-section he cannot be evicted though he ceases to be a contractual tenant. By virtue of the sub-section he becomes irremoveable on the conditions of that sub-section. This irremoveability is generally known as a statutory tenancy. If, however, the tenant by reason of default of payment of standard rent and permitted increases or non-observance of the other conditions of the tenancy comes to lose the protection given by Sub-section (1), even then the landlord is not entitled straightway to file a suit for recovery of possession but Sub-section (2) provides a further restriction on his right to recover possession by providing that he shall give a notice of demand of standard rent or permitted increases due to him and the suit shall not be filed until the expiration of one month after such notice. Therefore, the sub-section gives an opportunity to the tenant to rectify his default before a suit for recovery of possession can be filed by the landlord in view of the non-observance by the tenant of the terms of Sub-section (1). Sub-section (3) concerns a situation where the tenant has still not paid even after the notice as required by Sub-section (2) was given and a month has passed and a suit is filed by the landlord; then the right to recover possession is still not enforced by the Court if the tenant pays or tenders in Court on the first date of hearing the standard tent and permitted increases then due together with the cost of the suit.
7. Now, a close examination of these provisions shows that they are concerned with the landlord's right to recover possession. They place restrictions on the exercise of that right. That is how these provisions have been construed by this Court in Ambalal v. Babaldas III G.L.R. 625 and the same view has been taken by the Supreme Court in the case of Punjalal v. Bhagwatprasad (supra). In that case the Supreme Court observes (page 40) that the Act (they were dealing with the Bombay Act) intended to restrict the rights which the landlords possessed either for charging excessive rents or for evicting tenants and after referring to Sub-section (1) of Section 12 of the said Act their Lordships go on to say:
It creates a restriction on the landlord's right to the recovery of possession. When the landlord will have such a right is not provided by it. Ordinarily, the landlord will have a right to recover possession from the tenant when the tenancy had determined. The provisions of this section therefore will operate against the landlord after the determination of the tenancy by any of the modes referred to in Section 111 of the Transfer of Property Act. What this section of the Act provides is that even after the determination of the tenancy, a landlord will not be entitled to recover possession, though a right to recover possession gets vested in him, so long as the tenant complies with what he is required to do by this section. It is this extra protection given by this section which will be useful to the tenant after his tenancy has determined. The section does not create a new right in the landlord to evict the tenant when the tenant does not pay his rent. It does not say so, and therefore, it is clear that a landlord's right to evict the tenant for default in payment of rent will arise only after the tenancy is determined and the continued possession of the tenant is not on account of the contractual terms but on account of the statutory right conferred on him to continue in possession so long as he complies with what Sub-section (1) requires of him. The landlord is restricted from evicting the tenant till the tenant does not do what he is required to do for peaceful possession under Sub-section (1) of Section 12.
Therefore, these provisions were meant to operate as restrictions on the landlord's undoubted right, a right vested in him, to recover possession. The restrictions so placed give a corresponding protection to the tenant in respect of his liability for eviction. It is Sub-section (1) of Section 12 which confers this protection. Sub-sees. (2) and (3) are only meant to give a further opportunity to the tenant to remedy the breach of the conditions of the protection conferred by Sub-section (1). Sub-section (3) no doubt places a bar on the Court passing a decree for eviction but that bar arises after the tenant has availed himself of the opportunity given under that subsection. The language of said Sub-section (3) indicates that that sub-section would apply to a suit governed by it. The sub-section by its terms operates only after a suit is instituted. The sub-section has reference to the stage when the Court is seized of the matter by reason of the institution of the suit. If at the time the suit is instituted and the Court is seized of the matter the said Sub-section (3) is not in force, the opportunity under that sub-section which the applicant wants to avail of is no more available nor is there any bar on the powers of the Court from passing a decree for eviction merely because the tenant deposits the arrears of rent. When a suit is instituted during the period the sub-section is in force the tenant can save himself from eviction by decree by tendering or depositing all arrears in Court. This opportunity which the sub-section gives even if it be termed a existing right with reference to the suit instituted cannot survive the repeal of the sub-section if nothing has been done before the repeal by any of the parties which would entitle the party seeking to exercise that right to do so. Having regard to the scheme of Section 12 and the terms of Sub-section (3) thereof it is not possible to hold that the subsection creates a right much less a vested right. In this connection reference may be made to the decision in Abbott v. Minister for Lands 1895 Appeal Cases 425 to which Mr. Gandhi has invited my attention. Under Section 22 of the Crown Lands Alination Act, 1861, a certain class of persons holding land might make conditional purchases of adjoining land upto the prescribed area. The Act was repealed by the Crowns Lands Act, 1884 which did not contain provisions simitar to the said Section 22 but contained a saving proviso which said:
Provided always that notwithstanding such repeal:
(b) All rights accrued and obligations incurred or imposed under or by virtue of any of the said repealed enactments shall subject to any express provisions of this Act in relation thereto remain unaffected by such repeal.It was contended on behalf of the appellant that this saving proviso enabled him still to make an additional conditional purpose as if Section 22 of the repealed Act had remained in force. Their Lordships said:
It may be, as Windeyer J. observes, that the power to take advantage of an enactment may without impropriety be termed a 'right'. But the questions is whether it is a 'right accrued' within the meaning of the enactment which has to be construed.
Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjuction with the words 'obligations incurred or imposed. ' They think that the mere right (assuming it to be properely so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued' within the meaning of the enactment.
Sub-section (3) of Section 12 of the Saurashtra Act confers less of a right than did Section 22 of the Crown Lands Alination Act. The sub-section merely affords the tenant an opportunity to rectify his default. Therefore, the tenant in the present case had no right much less a vested right as claimed.
8. The point under consideration appears to be concluded by the decision of the Supreme Court in Vasumati v. Naviram IV G.L.R. 969. In that case the Court was concerned with the Bombay Act. Sub-sections (1) and (2) of that Act were, as already pointed out, identical in terms with Sub-sections (1) and (2) of the Saurashtra Act. The old Sub-section (3) of the Bombay Act was identical in terms with Sub-section (3) of the Saurashtra Act except for absence of the word 'first' in the expression 'at the first hearing of the suit. ' By the amending Act, Bombay Act 61 of 1953, that sub-section was repealed by a new Sub-section (3) which contained Clauses (a) and (b) which have been earlier quoted. This new Sub-section (3) containing Clauses (a) and (b) came into force in the Bombay Act with effect from 31-3-1964. The landlord in that case gave a notice under Sub-section (2) of Section 12 on 27-3-1953 that is before the amendment but the suit was filed on 12-4-1954 that is after the amendment. One of the contentions urged by the tenant was that the right given to him (the tenant) under the old Sub-section (3) to pay arrears at the hearing of the suit was a vested right. Their Lordships said:
It is not easy to accept the contention that the provisions of Section 12(3)(a) [sic Section 12(3)] really confer any vested right as such on the tenant. What Section 12(3)(a) [sic Section 12(3)] provide was that a decree shall not be passed in favour of the landlord in case the tenant pays or tenders in Court the standard rent at the hearing of the suit. This provision cannot prima facie be said to confer any right or vested right on the tenant. But even if the tenant had a vested right to pay the money in Court at the hearing of the suit, we do not see how that consideration can alter the plain effect of the words used in Section 12(3)(a). The suit was filed after the amended section came into force, and clearly the amended provision applies to the suit and governs the decision of the dispute between the parties. If that is so, the plain meaning of Section 12(3)(a) is that if a notice is served on the tenant and he has not made the payment as required within the time specified in Section 12(3Xa), the Court is bound to pass a decree for eviction against the tenant.
Therefore, having regard to this ruling Mr. Shah's contention that the tenant had acquired a vested right of the nature contended for cannot be sustained.
9. Mr. Shah sought to distinguish the Supreme Court decision on the ground firstly that it was a case of an amendment and not a case of repeal or re-enactment of the Act, and secondly that there was no saving provision in the Bombay Amending Act, 61 of 1953, which the Supreme Court was considering. The second objection may first be disposed of in brief. An express saving provision has importance only in so far as it departs from the general principles laid down in Section 7 of the Bombay General Clauses Act. 1904. The provisions of Section 51 of the Bombay Act in so far as they contain a saving clause are not substantially different from the principles embodied in Section 7 of the Bombay General Clauses Act. If there is an accured right then the principles embodied in Section 7 of the Bombay General Clauses Act would apply subject to the expression of the legislative intent. If there is no accrued right as in this case, it is not clear how a saving clause of the nature suggested would help. As regards the first objection it is not clear how the fact that what the Supreme Court was considering was an amendment of a section by its being replaced by another makes any difference to the statement of the law by the Supreme Court. All that Mr. Shah could argue was that according to well recognised principles an amendment must be deemed to have been written with the same ink and pen as the original Act and he invited my attention to decision of the Supreme Court in Shamrao Parulekar v. District Magistrate, Thana : 1952CriLJ1503 in support of that proposition. That no doubt is true but it is not clear how that argument assists Mr. Shah. In Shamrao's case their Lordships speaking of an amendment which extended the life of the original Act stated:
The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words has been written into the earlier Act with (sic the same) pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all.
From these observations Mr. Shah argued that every amendment must relate back to the date of the original Act. In support of that argument he relied on the decision of the Bombay High Court in Parvatibai v. Shridhar 60. B.L.R. 1175 in which case the above observations of the Supreme Court have been so construed, An identical argument was advanced before me in C.R.A. No. 1017/64 (decided on 21-3-1967) and I have held that the argument is not well founded. (Mustafa Ishmail v. Manishankar VIII G.L.R. 641). It is enough to refer in this connection to the Supreme Court decision in Ram Narain v. S.S. & I. Co. : 1SCR603 where (at page 621) after quoting the above observations in Shamrao Parulekar's case their Lordships said:
Now there is no question about the correctness of the dictum. But it appears to us that it has no application to this case. It is perfectly true as stated therein that whenever an amended Act has to be applied subsequent to the date of the amendment the various unamended provisions of the Act have to be read along with the amended provisions as though they are part of it. This is for the purpose of determining what the meaning of any particular provision of the Act as amended is, whether it is in the unamended part or in the amended part.
But this is not the same thing as saying that the amendment itself must be taken to have been in existence as from the date of the earlier Act. That would be imputing to the amendment retrospective operation which could only be done if such retrospective operation is given by the amending Act either expressly or by necessary implication.
Therefore, the argument that an amendment, by a rule of construction itself, relates back to the date of the original Act is negatived by the Supreme Court. Mr. Shah has not, therefore, been able to show why Vasumati's case which is practically in all fours in the present case should not govern this case.
10. Mr. Shah's next argument is that there is a direct ruling of this Court holding that on the termination of the contractual tenancy the tenant acquires from the date of the determination a vested right to avoid eviction by depositing arrears in Court in the suit which may be filed by the landlord and he invited my attention in this connection to the case of Mohanlal v. Maheshwari Mills Ltd. III G.L.R. 574. There an argument to that effect was advanced on behalf of the tenant. The Court was considering the old Sub-section (3) of Section 12 of the Bombay Act. The learned Judge proceeded on the footing that a vested right may arise as from the date the contractual tenancy is terminated but pointed out that in the case before him the amended sections (3)(a) and (b) of Section 12 of the Bombay Act had come into force before the date on which the contractual tenancy stood terminated, and therefore, there was no vesting of the right before the amendment and there was no vested right available. The facts of that case, therefore, were different and the observations made therein cannot be taken as laying down that on the termination of the contractual tenancy a vested right under the old Sub-section (3) of Section 12 of the Bombay Act would arise. This very decision was relied on behalf of the tenant in C.R.A. No. 175 of 1960. In that case this Court held that there was no such right much less a vested right and the tenant's plea was rejected. That view was confirmed by the Supreme Court in Vasumati's case which was an appeal by special leave from the decision of this Court in C.R.A. No. 175 of 1960. Therefore, the decision in case relied on by Mr. Shah cannot help him.
11. Mr. Shah then put forward a variant of his argument relating to a Vested right. He contended that if his case did not fall under Clause (ii) of the first proviso to Section 51 it fell under Clause (iv). That clause reads as under:
(1) such repeal shall not:(iv) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penality, forfeiture or punishment as aforesaid, and,
12. His argument was that he had incurred a liability to be evicted and in respect of that liability the old Sub-section (3) gave him a remedy and therefore this remedy was saved by the aforesaid Sub-clause (iv) read with Sub-clause (ii). The short answer to this argument is that the old Sub-section (3) of Section 12 which was the law repealed did not by itself impose any liability and, therefore, there is no scope for the argument that the opportunity to pay up the arrears provided for in the said Sub-section (3) was a remedy in respect of that liability. The liability to be evicted arose by reason of the statutory tenant's failure to observe the conditions laid down in Sub-sections (1) and (2) of Section 12. In my opinion, therefore, this argument also cannot be sustained.
13. Mr. Shah next submitted that he having expressed, at the time of the suit and also in the correspondence which took place before the suit, his willingness to pay up the arrears of rent, Sub-section (3)(a) of Section 12 of the Bombay Act was not attracted but the case fell under Sub-section (1). It is admitted that although the tenant wrote to the landlord that he was willing to pay he did not forward all the arrears of rent. One and half months after the date of the notice he sent to the landlord's advocate an amount of rent which fell short of the arrears. If the arrears are calculated as upto the date of the notice it fell short by one month as arrear and if the arrears are calculated upto the date when the amount was sent it fell short by three months arrears. In any case it is clear that there was no compliance either with Sub-section (1) or (2) of Section 12 and the mere statement in the correspondence that he was ready and willing to pay could not bring the case within Sub-section (1) of Section 12. If Sub-section (3)(a) applied there was no scope for the application of Sub-section (1). In Mrs. Manorama v. Mrs. Dhanlaxmi VII G.L.R. 1061 their Lordships of the Supreme Court said:
If the conditions of Sub-section (3)(a) are satisfied, the tenant cannot claim any protection from eviction under the Act. By tendering the arrears of rent after the expiry of one month from the service of the notice under Sub-section (2), he cannot claim the protection under Sub-section (1). It is immaterial whether the tender was made before or after the institution of the suit. In a case falling within Sub-section (3)(a) the tenant must be dealt with under the special provisions of Sub-section (3)(a) and he cannot claim any protection from eviction under the general provisions of Sub-section (1).
The landlord is vested with the right to recover possession of the premises if the rent is in arrears for a period of six months or more, 'the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in Sub-section (2)', and the other conditions of Sub-section (3) are satisfied. This right cannot be defeated by showing that the tenant was ready and willing to pay the arrears of rent after the default, but before the institution of the suit.
Therefore, this submission of Mr. Shah also cannot be sustained.
14. Mr. Shah's last submission was that even if Sub-section (3) of Section 12 of the Bombay Act applied, the clause that was attracted on the facts of this case was not Clause (a) but Clause (b) because, it is argued, the rent in the present case was not payable by the month. No such contention appears to have been taken in the trial Court or in the appellate Court nor is such a contention taken in the grounds of revision to this Court. The fact that the rent was payable by the month was never disputed and it is not in the circumstances possible to entertain that contention.
15. For these reasons, the revision application must fail. Accordingly, it is rejected and the rule is discharged with costs.