1. This special appeal by the tenant-defendant is directed against the judgment of the learned single Judge dated August 26, 1975, affirming the judgment and decree of the learned Additional District Judge No. 2, Jaipur, dated September 21, 1974, by which he directed the eviction of the appellant.
2. The defendant-appellant is a tenant on a rental of Rs. 425/- per mensem. The plaintiff claims to have purchased the property in dispute from the previous owner on November 7, 1968. The plaintiff filed a suit for eviction on the ground of personal bona fide need as well as on the ground that the defendant-appellant was in arrears of rent and was a defaulter. The trial court, by his judgment dated November 21, 1974, decreed the plaintiff's suit and directed the eviction of the appellant. The defendant filed the first appeal before this court. The following points were argued,--
(1) That the suit was not maintainable as it was filed against M/s. General Auto Agencies which was not a juristic person.
(2) That the defendant could not be declared as a defaulter after depositing Rs. 12,225/- as arrears of rent for 27 months on the first date of bearing after he was properly served with the correct copv of the plaint by the court.
(3) That the notice being defective did not lay a valid foundation for filing the suit for ejectment and, therefore, the suit should have been dismissed on that ground, and
(4) That the plaintiff failed to prove his bona fide and reasonable necessity for getting a decree of eviction in his favour.
3. The learned single Judge held that the notice was valid. The learned single Judge also held that the suit was properly filed against the appellant and decided both these points against the appellant. Mr. C. L. Agrawal, learned counsel for the appellant, has not challenged the said findings and, therefore, it is not necessary to so into these.
4. The learned single Judge has also held that the plaintiff required the premises bona fide for his personal need. The learned single Judge has also held that the defendant did not deposit the arrears of rent on the first date of hearing and, therefore, was liable to be evicted. Mr. Agrawal has addressed arguments to us only on these two points. We are, therefore, concerned with points Nos. 2 and 4 above, in this appeal.
5. Point No. 2. The admitted facts are that the summons was issued to the appellant-tenant for April 21, 1971. The summons was served and the defendant appeared in the court, but stated that a complete copy of the plaint was not sent along with the summons. On that, the Court ordered that as the counsel for the defendant says that a complete copy of the plaint has not been received by his client, the learned counsel for the plaintiff is directed to supply a copy of the plaint within three days and directed the case to be listed for May 21, 1971 for filing of the written statement. The copy of the plaint was supplied to the defendant. It is also agreed that on May 21, 1971, the full arrears of rent along with interest were deposited by the appellant. The eviction, however, was sought by the plaintiff on the ground that the first date of hearing was April 21, 1971 and the deposit of the arrears of rent etc. by the defendant on May 21, 1971, cannot avail the appellant so as to avoid the eviction.
6. Section 13(1) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act. 1950 (hereinafter referred to as 'the Act'), inter alia, provides that,--
'Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of the landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied-
(a) that the tenant has neither paid nor tendered the amount of rent due from him for six months... ... ...' Section 13 (4) of the Act lays down that,--
'(4), In a suit for eviction on the ground set forth in Clause (a) of Sub-section (1), with or without any of the other grounds referred to in that sub-section, the tenant shall, On the first day of hearing Or on or before such date, as the court may, on an application made to it, fix in this behalf, or within such time, not exceeding two months, as may be extended by the court, deposit in court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of six per cent per annum from the date when any such amount was payable upto the date of deposit and shall thereafter continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate.' Section 13 (7) of the Act provides that,--
'(7). If a tenant makes deposit or payment as required by Sub-section (4) or Sub-section (5), no decree for eviction on the ground specified in Clause (a) of Sub-section (1) shall be passed by the court but the court may allow such costs as it may deem fit to the landlord.
Provided... ... ... ... ...'
7. Admittedly, no application was made by the defendant to the trial court seeking extension of the time for deposit of the rent. The dispute between the parties really centres round on the question whether April 21, 1971 can be taken to be the first day of hearing If the first day of hearing is taken to be April 21, 1971, as has been held by the courts below, it is not disputed that the eviction of the appellant must follow. If, however, the first day of hearing is taken to be May 21, 1971, a decree for eviction could not be given on the ground of default in payment of rent because the full amount of arrears was deposited by the tenant on the first day of hearing, as required by the Act.
8. In Martin & Harris (Pvt.) Ltd. v. Prem Chand, 1974 Raj LW 115 : (AIR 1974 Raj 136) (FB), it has been held that the first day of hearing appearing in Sub-section (4) of Section 13 is the date for which the summons is issued to the defendant for settlement of issues. It is on the basis of this that Mr. Parekh sought to urge that as the summons was issued for April 21, 1971, that is the first day of hearing irrespective of the fact whether the summons was accompanied by a copy of the plaint or not. This has found favour with the learned single Judge who has held that as the Defendant did not make any application for the extension of the time for the deposit of arrears of rent before the Court, he had not complied with the provisions of Section 13 (4) of the Act which required the deposit of the arrears of rent etc. on the first day of hearing. The learned single Judge has also held that it was of no consequence whether issues could or could not be settled on April 21, 1971' because of the fact that the copy of the plaint was not sent along with the summons, and that the first day of hearing would always remain the day of the return of the summons for the settlement of the issues, as that was a fixed day and the defendant cannot be taken out of the expression of defaulter when he did not deposit the amount on the said date. With respect, we cannot agree, when the Full Bench in Martin's case held that the first day of hearing is the day on which the summons is issued to the defendant for the settlement of issues, it necessarily postulates summons in accordance with the law.
9. The procedure applicable to the suits under the Act is that provided by the Civil P. C. Section 27 of the Code lays down that where a suit has been duly instituted, a summons may be issued to the defendants to appear and answer the claim and may be served in the manner prescribed. Order 5, Rule 1, C. P. C. requires that when a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified. Rule 2 of Order 5 further requires that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. Order 9, Rule 1 lays down that on the day fixed In the summons for the defendant to appear and answer, the parties shall be in attendance at the court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the court. Order 8, Rule 1, C. P. C. provides that 'the defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence',
10. It will be seen that the whole purpose of issuing summons is to require the defendant to answer the claim of the plaintiff. It is for this purpose that Order 5, Rule 2, C. P. C, requires that 'every summons shall be accompanied by a copy of the plaint'. This is because, the mere presence of the defendant in the court may be of no practical significance unless the defendant has already been made aware of the claim of the plaintiff so that he can, on the date he appears in the court, answer the claim of the plaintiff. There is no point in just issuing summons and giving an intimation to the defendant that some kind of suit has been filed against him. The Code contemplates that the summons, which will be issued to the defendant, will provide sufficient and definite information to the defendant so that he can answer the claim when he appears on the first day of hearing. If, therefore, the summons is not accompanied by a copy of the plaint, the result will be that on the said date, even if the defendant appears, he will not be in a position to answer the claim. In such a situation to hold that the said date is the first day of hearing simply because the defendant ha? appeared in court would be to go contrary to language used by the Code and also to the very intention of the rules which require a positive information being made available to the defendant, by making it mandatory that the summons shall be accompanied by a copy of the plaint. That mere service of summons is not enough may be illustrated by the instance that if on receiving summons, the defendant was not to appear on the said date and ex parte proceedings were started against the defendant, he would be entitled to have them set aside on the ground that the summons was not duly served as it was not accompanied by a copy of the plaint. Surely, if Mr. Parekh is right in his contention that once summons have been issued, even if it is without a copy of the plaint having accompanied it, the first date of hearing would be the date mentioned in the summons, it would make incumbent on the defendant to appear on that date on penalty that if he does not 90 appear logically according to Mr. Parekh's contention there would be no justification for the defendant to claim that the ex parte decree should be set aside. We do not accept this contention which would work such inequitable and unintended result. In Jagat Ram v. Shanti Sarup, (AIR 1965 Punj 175), the defendant tenant was served on February 7, 1963, but without a copy of the application for eviction by the landlord. He appeared on that date and demanded a copy of the application, which was supplied and the case was adjourned to February 9, 1963. It was held that February 9, 1963 would be the first day of hearing. In that case however the tenant did not appear on February 9, and ex parte order was passed. On March 5, 1963, ex parte order was set aside. It was held that first day of hearing was March 5, 1963, and as arrears had been paid by February 15, 1963, the same was held to have been cleared before the first day of hearing i. e. March 5, 1963. Proviso to Section 13 (2) (i) of the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act No. III of 1949), runs in these terms,--
'Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of the application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid.' Their Lordships held that the expression 'due service' is used in the Civil P. C. and there is no reason why the same meaning should not be attached to this expression under the East Punjab Urban Rent Restriction Act, even if Code had not been made specifically applicable to the Punjab Act The Bench held that mere service of summons will not make the hearing a first hearing. Unless the summons has been served with a copy of the application, the appearance of tenant in response to them will not make that hearing a first hearing. The Bench also held that if the tenant has either not been conveyed the purport or the copy of the application but he appears before the Rent Controller, it would be appearance in response to service of summons but not 'due service of summons'. In other words, it will be a hearing but not the 'first hearing'.
11. A similar view was also taken in Gian Chand Bali v. Smt. Sita Devi, (1973 Ren CR 523) (Him Pra). It was held that if the service of the summons alone is considered sufficient, the tenant will deprived of the right given by the statute to deposit the arrears and avoid an eviction order. If the copy of the application alone is served, the tenant will not know of the date when he should appear. Therefore, both documents must be served on the tenant in order to constitute the only kind of service intended by the statute.
12. In Hari Narain v. Lallu Narain, (1974 Raj LW 618), summonses were issued in one case for February 22, 1971. The tenant appeared and represented to the Court that the defendant had not been supplied with copy of the plaint. The trial court passed order directing the plaintiff to supply the copy of the plaint to the defendant. March 10, 1971 was fixed for filing of the written statement and on that day, an application under Section 13 (5) of the Act was filed denying the plaintiff's claim in suit. Objection was taken by the plaintiff that the defendant was not entitled to the benefit of Section 13 (5) of the Act on the ground that the application should have been filed on February 22, 1971 as that was the day of hearing. It may be noted that the Full Bench in Martin & Harris (Pvt.) Ltd.'s case (AIR 1974 Raj 136) (FB) has held that an application by defendant to raise a dispute under Section 13 (5) of the Act must be filed on the first date of hearing. Rejecting the plea of landlord, Shinghal, J. (as his Lordship then was), it was held that February 22, 1971 could not be taken to be the first day of hearing in the context of the case, as summons has necessarily to be accompanied by the copy of the plaint and if it is found that the summons was not duly served, it cannot be a date fixed for the appearance of the defendant and it cannot be taken to be the first date of hearing as the summons had not been duly served in accordance with the requirement of the law. His Lordship further observed that,--
'I have no doubt therefore that in such a case the first day of hearing would be the first day fixed for the appearance of the defendant after the supply of the copy of the plaint to him. Any other view of the provisions of Sub-sections (4) and (5) of Section 13 will render them nugatory at the hands of an unscrupulous plaintiff who may file the summons without a copy of the plaint or see to it that the summons served on the defendant is not accompanied by a copy of the plaint'
His Lordship followed the rulings in M.G. Dua v. Balli Mal Nawal Kishore, (AIR1959 Punj 467) and Jagat Ram v. Shanti Sarup, (AIR 1965 Punj 175).
13. Mr. Parekh refers us to Brij Kishore v. Dr. Amar Nath, (AIR 1952 Pepsu 174). This rather goes against him. In that case, the tenant had been issued a notice to appear in court on July 18, 1950. He appeared in Court on that day, but did not make the deposit of arrears of rent till August 17, 1950. In justification, the tenant pleaded that he did not make the payment on July 18, 1950 because a copy of the petition had not been given to him. The learned Judge found that though the copy of the petition did not accompany the summons, but the same was supplied to the tenant on July 18, 1950 when he appeared before the court, when the case was adjourned to August 8, 1950. The learned Judge found that there was no explanation as to why no payment was made on August 8, 1950 and under these circumstances, it was held that the tenant had committed default in making deposit on the first day of hearing as required by Rent Control Act. It will thus be seen that if the argument of Mr. Parekh was to be accepted, then July 18, 1950 should have been taken to be the first day of hearing, but the court did not so hold. Rather it held that August 8, 1950, i. e. the date to which the case was adjourned after the supply of the copy of the petition to the tenant would be the first day of hearing. In our view to hold that the first day of hearing should be the date mentioned in summons even when not accompanied by the copy of the plaint is not only to go contrary to the direct mandate of the law, but would be very inequitable. A very serious consequence like eviction follows the non-deposit of arrears of the rent on the first day of hearing. If the tenant is not even told as to what the suit is about or as to what amount is being asked for and yet he is penalised with eviction because of his failure to deposit the arrears of rent on the first day of hearing, can hardly be justified in equity and is certainly not in accordance with the beneficial interpretation of a legislation in favour of tenants. To take an illustration, if a tenant happens to be in court premises in connection with some other matter and on coming to know that some proceedings for eviction were being taken against him in the court, presents himself before the court to enquire as to the nature of the proceedings, can it be said that he had appeared on the date fixed in the summons and therefore that was the first day of hearing if he does not deposit rent, he must suffer the penalty of eviction. Surely, nothing could be more inequitable. Mr. Parekh laid much stress on the fact that there was a provision in the Act for a tenant to apply to the Court for the extension of time for deposit of rent and the Court could grant an extension for two months. That undoubtedly is so, but this is only an additional advantage to permit the tenant to seek the discretion of the trial court in giving some time to deposit the rent not on the first day of hearing but on the further date not beyond two months. This is extra concession which every tenant can Invoke and is available even in the case of the tenant who has been duly served along with a copy of the plaint so that the recourse to this extra concession ha no relevance to the determination of the quastion whether the appearance in pursuance of sommons unaccompanied by a copy of the plaint will make that date as the first day of hearing. The only logical and correct view to take is that the first day of hearing will be the day on which the tenant appears in pursuance of a summons duly served, meaning thereby, a summons which is accompanied by a copy of the plaint.
14. Mr. Parekh had made efforts to try to distinguish the cases on the ground that in the present case, it was not a case of no copy of the plaint having been sent, but only an incomplete copy of the plaint having not accompanied the summons. The difficulty in the way of Mr. Parekh, however, is that when the objection was taken before the trial court that no complete copy of the plaint had been received by the defendant, the said objection seems to have been accepted by the plaintiff. We have no material on record to tell us as to what precisely was the incompleteness in the plaint and therefore we cannot entertain a suggestion that It was very minor and inconsequential omission in the plaint. If Mr. Parekh's point is that there were inconsequential omissions and the copy of the plaint sent with the summons was an appropriate copy, such an objection should have been taken before the trial court. The case before the trial court and the learned single Judge has proceeded on the basis that the copy of the plaint sent to the defendant did not enable him to know what claim he had to answer. The parties have throughout proceeded on the basis as if, in fact, the copy which was sent, was totally insufficient and incomplete and really amounted to no copy of plaint having been sent at all. We have, therefore, to proceed on the basis that in the present case the incompleteness of the copy was equivalent to no copy of the plaint having been sent. Mr. Parekh laid much stress that Order 9, Rule 6, C. P. C. which provides that where the plaintiff appears and the defendant does not appear when the suit is called on for hearing and where the court is required to see whether the summons have not been duly served, is not applicable, because the defendant did appear on May 21, 1971. This is, in fact, the same argument given in different phraseology which seems to suggest that if the defendant appears on the date mentioned in the summons even when the summons is not accompanied by the copy of the plaint, it would be token to be an appearance as required by Order 9, Rule 1 of Civil P. C. As we have already said, Order 9, Rule 1, C. P. C. contemplates defendant to appear and answer the claim and this he cannot do unless & copy of the plaint has been sent along with the summons. Even if, the defendant chooses to appear on the said date, that date would not be taken to be the first day of hearing.
15. Gyarsilal v. Firm Ramgopal Radhey Shyam, (ILR (1959) 3 Raj 1012) was referred to. In that case, the defendant was served with a summons for March 9, 1951. He did not appear and ex parte proceedings were taken against him and a decree was passed. In appeal, before the High Court, an objection was taken that the copy of the claim had not been served. In that connection, it was observed by Sarjoo Prosad C. J., that whore it was contended that the summons served on the defendant was not accompanied by a copy of the plaint, it was not sufficient cause for his absence and negligence in not defending the suit and it was observed that if a copy of the plaint had not been served on him, it was open to the defendant to take the objection in the suit itself, when he could have been easily provided with a copy of the plaint. The learned Judge noticed that this point was not agitated before the court below, jas also in the application under Order 9, Rule 13 Civil P. C. That case did not Jay down that if a copy of the plaint is not sent with the summons, it can be held to be 'due service'. The case was decided on its own peculiar facts and it has no applicability.
16. It appears that the Punjab cases and the one decided by Shinghal, J. were not cited before the learned single Judge and therefore he did not have the benefit of the reasoning and decision of those cases available to him. Though we have the highest of respect for the judgment of the learned single Judge, we nevertheless feel compelled to hold contrary to Ms view, that the first day of hearing was not April 21, 1971, but was may 21, 1971, which was the date fixed after the copy of the plaint had been supplied to the appellant. Under the circumstances, we must therefore hold that as May 21, 1971 was the first day of hearing and as admittedly full deposits were made on the said date, the ground under Clause (a) of Section 13 (1) of the Act was not available to the plaintiff. We would therefore reverse the finding of the court below on the point that the appellant was liable to be evicted as he had not complied with the requirement of Sub-section (4) of Section 13 of the Act.
17. The learned single Judge has upheld the finding of the court below and has found that the premises were required bona fide by the landlord for his own use. It has been found that the plaintiff who purchased the building for his residential as well as for his business, naturally looks forward to occupying it. Both the courts have thus found as a fact that the plaintiff bona fide requires the premises for his own personal use, and Bitting in special appeal, we find no justification to interfere, and would affirm that finding.
18. The judgment of the learned single Judge is dated August 26, 1975. Appeal was lodged in this court on October 6, 1975. Mr. Agrawal says that in spite of the finding on bona fide need in favour of landlord, a decree of eviction cannot now automatically follow and invokes the aid of Sub-section (2) of Section 1'4 of the Act which has been incorporated, by Ordinance No. 26 of 1975, and which has come into force from 29th day of September, 1975. The contention of Mr. Agrawal is that in view of the amendment even after it has been found that the premises are required bona fide by the landlord, no decree for eviction can be passed if the Court is satisfied that having regard to the comparative hardship between the landlord and the tenant, greater hardship would be caused by passing the decree than by refusing to pass it.
19. Modi, J., in Prabhashanker v. Smt. Rukmani, (1976 Raj LW 3) : (AlR 1976 Raj 17), has held that the amended Section 14 (2) of the Act is retrospective in operation and that it will inevitably come into play for the benefit of the tenant in the pending suits as also in the pending appeals. A similar view was taken by Shrimal, J. in Bhanwarlal v. Nathmal, 1976 Raj LW 59 : (AIR 1976 Raj 137), and by Gupta, J. in Mishrilal v. Sniv Charan, (1976 WLN 622). Mr. Parekh, however, challenges the correctness of the decisions in so far as they have held that the amended provision will have retrospective operation. No doubt, it is true that where vested rights are affected by any statutory provision, the said provision should normally be construed to be prospective in operation and not retrospective, unless the provision in question relates merely to a procedural matter. The legislature is competent to take away vested rights by means of retrospective legislation. But it is equally clear that retrospective operation of statutory provision can be inferred even in cases where such retrospective operation appears to be clearly implicit in the provision constituted in the context where it occurs. (See Mst Rafiquennessa v. Lal Bahadur, (AIR 1964 SC 1511).)
20. New Section 13 (1) (h) of the Act provides that no court shall pass any decree or make any order in favour of the landlord evicting the tenant unless it is satisfied that the premises are required reasonably and bona fide by the landlord for his use. In the present case, no doubt, he has so satisfied the court. Had there been no amendment of Section 14 (2) of the Act, he Would undoubtedly have been entitled to the decree for eviction which he had obtained from the courts below. Section 14 (2), however, now provides that no decree for eviction on the grounds set forth in Clause (h), Sub-section (1) of Section 13 of the Act shall be passed unless thy Court has determined the question of comparative hardship between the landlord and the tenant. It is apparent that the decree, that will be passed now, will be the decree of this Court. We cannot ignore this amended provision and now pass a decree for eviction unless first the question of comparative hardship is determined in favour of the landlord on the ground that amended provision is only applicable to eviction suits filed after September 29. 1975. In our view, such a contention is untenable. The point of time when Section 14 (2) requires a finding on comparative hardship is at the time when a decree for eviction is to be passed and as we are still at the stage of the hearing of the appeal, it is apparent that if we were to ignore Section 14 (2) and pass a decree of eviction, without & finding on the question of comparative hardship we would be going against the mandate of amended Section 14 (2). In Mst. Rafiquennessa v. Lal Bahadur, AIR 1964 SC 1511, Section 5 (1) (a) of the Assam Non-Agricultural Urban Areas Tenancy Act provided that the tenant shall not be evicted by the landlord from the tenancy except on the ground of nonpayment of rent etc., was held to give protection to the tenant even at the appellate stage, when by the proceedings pending before the appellate court, the landlord is seeking to evict the tenant and that obviously indicates that pending proceedings are governed by Section 5 (1) (a), though they have been initially instituted before the Act came into force. It may be noticed that in that case, the landlord had succeeded before the trial court in getting an order of eviction, but while the appeal was pending in the High Court, the amended Act had come into force, and the appeal by the High Court had been dismissed by applying the amended provision, which decision was upheld by the Supreme Court.
21. Section 12 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which was to the effect that a landlord shall not be entitled to the recovery of possession of any premises......... ... ... was interpreted to apply equally to suits pending when the section came into force and those to be filed subsequently. The Supreme Court observed that the point of time when the sub-section will operate is when the decree for recovery of possession would have to be passed, (vide Bhojraj Kuverji Oil Mills v. Subhash Chandra Yograj Sinha, AIR 1961 SC 1596). Mr. Parekh referred Chandrasingh Manibhai v. Surjit Lal, (AIR 1951 SC 199), where sub-ss. (2) and (3) of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act were held to be prospective in operation, but as noticed in Shah Bhojrai Kuverji Oil Mills' case, the wording of Section 12 (1) differs from sub-sections (2) and (3) of Section 1'2 of the Bombay Act. The words of Section 12 (1) correspond to that in Section 14 (2) of our Act.
22. Mr. Parekh refers to Moti Ram v. Surajbhan, (AIR 1960 SC 655). That was a case under East Punjab Urban Rent Restriction Act. Section 13 (1) of that Act provided that a tenant in possession of a building shall not be evicted except in accordance with the provisions of that section. Section 13 (3) (a) (iii) was un-amended when the application for eviction was filed and it provided that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession in the case of any building if he requires it for the reconstruction of that building. Section 13 (3) (a) (iii) was later on amended to provide that in case of any building rented out if he requires it to carry out any building work at the instance of the Government or local authority. It was common case that if the amended provision applied, the landlord was not entitled to obtain an order for ejectment. Their Lordships held that the Amended Act does not make the relevant provision retrospective We may note that the counsel for the tenant had conceded that the initial provision in Section 13 (1) of the Act, which laid down that a tenant in possession of building shall not be evicted except in accordance with the provisions of this section and which was retrospective, was not attracted in interpreting the amended provision in Section 13 (a) (iii). It was in that context that their Lordships of the Supreme Court held that the amended provision was not retrospective but prospective. But the amended, Section 14 (2) of the Act which provided that no decree for eviction on the ground set-forth in Clause (h) of Sub-section (1) of Section 13 shall be passed unless the Court is satisfied, is worded like Section 13 (1) of the East Punjab Rent Act and must be held to be retrospective in terms.
23. Mr. Parekh refers to Section 13-A, which provides for special provision relating to pending matters and gives another opportunity to the tenant to deposit in Court all arrears of rent even if he had not done so earlier, and covers the eventuality where the tenant dies during the pendency of eviction proceedings. The argument is that special provision has been made for pending proceedings in Section 13-A of the Act. It shows that no other provision in the Act is retrospective, We cannot agree. In view of the clear language of Section 14 (2), there is no escape from the conclusion that the amended provision is retrospective in terms. We therefore repeal the argument of Mr. Parekh and hold in agreement with Modi, Gupta and Shrimal, JJ. that Section 14 (2) brought by the Amending Ordinance No. 26 of 1975 is retrospective in term and will apply to suits and appeals which are pending on that date. This plea of Mr. Parekh, therefore, fails.
24. Mr. Parekh had also sought to urge that the question of comparative hardship was decided against the appellant by the trial court. He drew our attention to the judgment of the trial court where there is a mention of argument of comparative hardship. We find that the trial court characterised this argument of greater hardship or comparative inconvenience raised by the counsel for the tenant as being introduced for the first time during the course of arguments and also observed that it was neither pleaded nor proved by it and not a word was said about the balance of convenience. In that context, there was no question of deciding this point, as indeed, there was no occasion for it because the decision of the trial court was given on September 21, 1974, whereas the amended provision came into existence only on September 29, 1975. The reference to comparative hardship was only in the context of decision on the question of bona fide need of the landlord. We, therefore, cannot accept the argument of Mr. Parekh that the question of comparative hardship has already been gone into and decided against the appellant. This argument, therefore, fails.
25. In view of the fact that the law has been changed during the pendency of the appeal here, it is apparent that the question of comparative hardship as required by Section 14 (2) of the Act, as amended, has first to be determined before the appeal can now be disposed of. We would, therefore, in the circumstances, frame the following issue and remit the same to the trial court, which shall give opportunity to the parties to lead their evidence and then return the same to this Court along with its findings thereon, within a period of four months,--
'Whether having regard to all the circumstances of the case, greater hardship would be caused by passing a decree for eviction than by refusing to pass it ?'
26. The parties are directed to appear before the trial Court on April 4, 1977.