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BepIn Chandra Ghosh Vs. Mahim Chandra Roy, S/O Raj Chandra Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1940Cal345
AppellantBepIn Chandra Ghosh
RespondentMahim Chandra Roy, S/O Raj Chandra Roy and ors.
Cases ReferredKeshoram Poddar v. Nundo Lal Mullick
Excerpt:
- .....some time before the actual decision was made. neither the language of the new enactment nor the primary object for which it was passed furnishes any indication that the legislature intended to give a retrospective operation to the new act so as to affect suits or proceedings already pending at that time. the court undoubtedly had jurisdiction to enter, tain the application at the time the application was made and as has been said by the judicial committee in keshoram poddar v. nundo lal mullick the material time is when the parties begin to move under an act, the rest is merely the working out of the application. we are of opinion therefore that the munsif had juris-diction to make the order under section 26-f which he made and this rule must stand discharged with costs, hearing fee.....
Judgment:

B.K. Mukherjea, J.

1. This rule was obtained on an application under Section 115, Civil P.C., and is directed against an order of the Munsif, Second Court, Kishoregunj, dated 30fch August 1938, passed in a proceeding under Section 26-F, Ben. Ten. Act. The facts lie within a very short compass and are for the most part undisputed. The petitioner before us was a purchaser of two occupancy holdings by a kabala dated 17th December 1937. Notice of this sale was served upon the landlord on 11th February 1938, and on 11th April following the landlord started a proceeding for pre-emption under Section 26-F, Bengal Tenancy Act, with regard to one of the holdings. It is not disputed that the necessary deposits were made and all the conditions laid down in that Section fulfilled and the learned Munsif allowed the application of the landlord by his order dated 30th August 1938.

2. The propriety of this order has been challenged by Mr. Pakrashi who appears before us for the purchaser petitioner, on the ground that as on the date of the order, Section 26-F, Ben. Ten. Act, was already repealed by Act 6 of 1938, the Munsif had no jurisdiction to make the order. We do not think that there is any substance in this contention. It is a settled, canon of con-struction that when the Legislature alters the rights of the parties by taking away or conferring any right, its enactment, unless, in clear terms be applied to pending actions does not affect them. The same principle is embodied in Section 8, Bengal General Clauses Act (Act 1 of 1899) which lays down that

where this Act, or any Bengal Act made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not... (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, or... (e) affect any investigation, legal proceeding or remedy, in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.

3. In this case, the application for preemption was made at a time when Section 26-F, Ben. Ten. Act, was operative, and the changes which have been relied upon by the learned advocate for the petitioner were introduced much later and some time before the actual decision was made. Neither the language of the new enactment nor the primary object for which it was passed furnishes any indication that the Legislature intended to give a retrospective operation to the new Act so as to affect suits or proceedings already pending at that time. The Court undoubtedly had jurisdiction to enter, tain the application at the time the application was made and as has been said by the Judicial Committee in Keshoram Poddar v. Nundo Lal Mullick the material time is when the parties begin to move under an Act, the rest is merely the working out of the application. We are of opinion therefore that the Munsif had juris-diction to make the order under Section 26-F which he made and this rule must stand discharged with costs, hearing fee being assessed at one gold mohur.

Mohamad Akram, J.

4. I agree.


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