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Dawoo Doyal Kothari Vs. Giridhari Laha - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata
Decided On
Case NumberCivil Rule No. 1185 of 1947
Judge
Reported inAIR1950Cal214,54CWN12
ActsGovernment of India Act, 1935 - Section 102 and 102(4); ;Calcutta House Rent Control Order, 1943 - Sections 9B; ;Calcutta House Rent Control (Amendment) Order, 1946; ;Defence of India (Second Amendment) Ordinance, 1946 - Section 2; ;General Clauses Act
AppellantDawoo Doyal Kothari
RespondentGiridhari Laha
Appellant AdvocateHemanta Kumar Bose, Adv.
Respondent AdvocatePanchanon Ghose, ;Probodh Kumar Shome and ;Benoy Kumar Ghose, Advs.
Cases ReferredJ.K. Gas Plant Manufactitring Co. v. Emperor
Excerpt:
- .....1945 it was decreed on consent in favour of the landlord. on 29th august 1945, the calcutta house rent control order was amended by the insertion of para. 9b which inter alia provided by sub-para. (3) that where any decree or order for recovery of possession had been made before 29th august 1945 on the ground of default in payment or deposit of rent but possession had not been recovered, the proceeding for recovery of possession in execution of the decree or order shall be stayed till 29th september 1945 and if daring that period the tenant made an application for setting aside the decree or order and deposited all arrears of rent and costs within such period as might be allowed by the court, the court which made the decree shall set it aside. on 1st october 1945 the opposite party.....
Judgment:

Lahiri, J.

1. This Rule was obtained by the plaintiff landlord in a proceeding under Section 41, Presidency Small Cause Court Act for the recovery of possession of room no. 27 of premises No. 57 Clive Street of which the opposite party was a monthly tenant at a rent of Rs. 75 per month. The facts of the case, which are undisputed, are as follows: the present proceeding was started on 7th March 1945, inter alia, on the ground of default in payment of rent after service of a notice to quit and on 27th July 1945 it was decreed on consent in favour of the landlord. On 29th August 1945, the Calcutta House Rent Control Order was amended by the insertion of para. 9B which inter alia provided by sub-para. (3) that where any decree or order for recovery of possession had been made before 29th August 1945 on the ground of default in payment or deposit of rent but possession had not been recovered, the proceeding for recovery of possession in execution of the decree or order shall be stayed till 29th September 1945 and if daring that period the tenant made an application for setting aside the decree or order and deposited all arrears of rent and costs within such period as might be allowed by the Court, the Court which made the decree shall set it aside. On 1st October 1945 the opposite party applied for relief under Para. 9B as it then stood and it was allowed by the Presidency Small Cause Court Judge; but on revision this Court set aside the order of the Small Cause Court Judge on 10th June 1946 on the ground that Para. 9B (3) as it then stood did not apply to consent decrees.

2. On 15th June 1946, Para. 9B was further amended by making it expressly applicable to consent decrees and orders and the time granted for filing an application for setting aside a consent decree or order was one calendar mouth expiring on 15th July 1946. On 12th July 1946 the opposite party filed a second application under the amended para. 9B for getting the reliefs contemplated by that paragraph and before this application was finally decided the Calcutta House Rent Control Order expired on 30th September 1946 and was replaced by the Calcutta Rent Ordinance (Bengal Ordinance No. V [5] of 1946) which came into operation on 1st October 1946. In spite of that, the learned Small Cause of Court Judge proceeded to decide the application and set aside the consent decree on 6th December 1946 in exercise of powers conferred by para. 9B (3), Calcutta House Rent Control Order.

3. The principal question that has arisen in this case therefore is whether in spite of the expiry of the Calcutta House Rent Control Order the Small Cause Court Judge had jurisdiction to continue the proceeding under para. 9B (3) started by the application dated 12th July 1946.

4. Mr. Bose appearing for the petitioner has argued that after the expiry of the Calcutta House Rent Control Order there was no provision in law under which the proceeding could be continued; because para. 9B (3) of the Control Order was not reproduced or re-enacted by the Calcutta Rent Ordinance. Mr. Boss has argued that Section 26 of the Rent Ordinance keeps alive only those proceedings under the Control Order for which there is a counter part in the Ordinance and as there is no provision in the Rent Ordinance corresponding to para. 9B (3) of the Control Order the proceeding under that paragraph cannot be continued under the Ordinance. This argument is of great force. The nearest approach in the Rent Ordinance to the provisions of para. 9B (3) of the Control Order is to be found in Section 17; but that section does not reproduce all the provisions of Para. 9B; for example, it does not give the tenant an option to have the decree for ejectment set aside as a matter of right, on payment of arrears of rent and costs. In the case of Manindra Nath Banerjee v. A. K. Fazlul Huq, 51 C. W. N. 148 Khundkar J. took the view that an application under para. 9B filed on 15th July 1946 could be continued, if at all, only under Section 17 of the Rent Ordinance and as the provisions of Section 17 (unlike the provisions of para. 9B of the Control Order) were not mandatory the tenant had no right to have the decree set aside as a matter of right. With regard to the effect of the expiration of a temporary statute Mr. Bose has relied upon Craies on Statute Law (4th Edn.) p. 347 where the learned author states as follows:

'Unless it contains some special provision to the contrary, after a temporary statute has expired no proceedings can be taken upon it and it ceases to have any further effect. Therefore offences committed against temporary Acts must be prosecuted and punished before the Act expires and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate.'

Similar observations are also to be found in Halabury's Laws of England (2nd Edn.) vol. 31 Art. 666 where the following passage appears:

'After the expiration of a Statute, in the absence of provision to the contrary, no proceedings can be taken on it and proceedings already commenced ipso facto determine.'

The argument of the petitioner is that the Calcutta House Rent Control Order having the force of a temporary Statute the proceeding under para. 9B initiated by the application filed on 12th July 1946 ipso facto terminated on 30th September 1946 on which date the statute expired.

5. If the present case were to be decided by reference to the provisions of the Calcutta House Rent Control Order and the Rent Ordinance only we would be bound to give effect to the contention of the petitioner. Mr. Ghose appearing for the opposite party has however relied upon Section 102(4), Government of India Act and also upon the language of Section 2, Defence of India (Second Amendment) Ordinance (Ordinance XII [12] of 1946) which came into effect on 30th March 1946. Section 2 of ordinance XII [12] of 1946 inter alia provides that the expiry of the Defence of India Act shall not affect any right, privilege, obligation or liability acquired accrued or incurred under the Defence of India Act or any rule made thereunder or any order made under such rule or any investigation or legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.

6. The Calcutta House Rent Control Order was passed by the Governor of Bengal under Rule 81 (2) (bb), Defence of India Rules which again were framed under Section 2, Defence of India Act. The Defence of India Act itself was enacted cinder Section 102, Government of India Act under which the Central Legislature was given power to legislate on provincial subjects after a Proclamation of Emergency had been made. By Sub-section. (4) of Section 102 as amended by Section 5, India (Central Government and Legislative) Act, 1946 (9 and 10 Geo. VI Ch. 89), it was provided that an emergency legislation on a provincial subject by the Central Legislature shall to the extent of the incompetency cease to have effect on the expiration of six months after the Proclamation of Emergency has ceased to operate, 'except as respects things done or omitted to be done before the expiration of the said period.' If we are to read the Calcutta House Rent Control Order as a part of the Defence of India Act, as we must, we are bound to hold that on 30th September 1946 the Calcutta House Rent Control Order ceased to have effect except as respects things done or omitted to be done before the said date.

7. The ultimate question that we have to decide in the present case, therefore is whether the application filed by the opposite party on 12th July 1946 for the reliefs contemplated by para. 9B (3), Calcutta House Rent Control Order come under the saving clause of Section 102(4), Government of India Act. The effect of a saving clause like the present one upon expiring statutes has been considered in several cases two of which deserve special mention.

8. In Wicks v. Director of Public Prosecutions, (1947) A. C. 362 (1947-1 ALL E. R. 205) the House of Lords had to consider the effect of a saving clause the language of which very nearly corresponds to the language of Section 102(4). Section 11 (3), English Statute named the Emergency Powers (Defence) Act, 1939, runs as

follows:

'The expiry of this Act shall not affect the operation thereof as respects things previously done or omitted to be done.'

The parent Act expired on 24th February 1946 and the defendant Wicks was arrested in March, 1946 for acting in contravention of a Regulation framed under the Act on various dates between April 1943 and January 1944. On 27th May 1946, the defendant was found guilty and sentenced to four years' penal servitude. The validity of the prosecution was challenged on the ground that it took place after the expiry of the parent Act and the Regulation; but the challenge was held to be untenable on the ground that the presence of Sub-section (3) preserved the right to prosecute after the date of the expiry. It was pointed by Viscount Simon in his speech that though Section 38, Interpretation Act (1889) does not apply to a statute which expires by effluxion of time, Section 11 (3), Emergency Powers (Defence) Act has the same effect. In the judgment of Lord Goddard which was affirmed by the House of Lords and which is reported in (1916) 62 T. L. R. 674 : (1946) A. E. R. 529 there is good deal of discussion on the language of Section 11 (8) and it wag pointed out though the language of that sub-section is somewhat-elliptical and less comprehensive than the language of Section 38, Interpretation Act it was wide enough to allow the expiring Act to operate in respect of a thing done or omitted to be done before the expiry. In J.K. Gas Plant Manufacturing Co. v. Emperor, 52 C. W. N. (F. C. R.) 25: (A. I. R. (34) 1947 F. C. 38) the Federal Court of India had to consider the effect of the saving clause in Section 102(4), Government of India Act in considering the question of the validity of a prosecution for the violation of the Indian Iron and Steel (Control of Production and Distribution) Order, 1941, after the expiry of the Defence of India Act. Spens C. J., held that though the Defence of India Act expired on 30th September 1946 the saving clause in Section 102(4), Government of India Act authorised a continuation of the prosecution. It was also pointed out that the general rule to the effect that after a temporary statute has expired no proceeding can be taken upon it is modified by the express insertion of the saving clause in Section 102(4) and reliance was placed upon the observations of Viscount Simon in Wick's case: (1947 A. C. 362 : 1947-1 ALL E. R. 205).

9. Applying the above principles to the circumstances of the present case, we have come to the conclusion that though the provisions of the General Clauses Act (which corresponds to the English Interpretation Act, 1889) do not apply to a temporary Statute like the Defence of India Act and though the language of the saving clause in Section 102(4), Government of India Act is elliptical and less comprehensive than the language of Section 2 of Ordinance XII [12] of 1946, it is wide enough to authorise the continuation of the proceeding for setting aside the consent decree which was started by the application filed by the opposite party on 12th July 1946 before the expiry of the Calcutta House Rent Control Order. Mr. Bose has argued that the provisions of the Government of India Act cannot be invoked for considering the effect of the expiry of the Control Order which was issued by the Governor of the Province. Both upon principle and upon the authority of the judgment of the Federal Court referred to above we cannot accept this argument. The ultimate source of the authority of the Governor to issue the Control Order is Section 102, Government of India Act and the effect of the expiry of the Control Order must be determined by reference to the provisions of Section 102.

10 The above decision on the scope of Section 102(4), Government of India Act is sufficient for the disposal of the Rule; but we have to place it on record that Mr. Bose for the petitioner objected to the application of Ordinance XII [12] of 1946 to the facts of the case on the ground that the Ordinance ceased to have effect on a provincial subject after 30th September 1946 under the provisions of Section 102(4) as amended by Section 5, India (Central Government and Legislative) Act of 1946 (9 and 10 Geo. VI Ch. 89). Mr. Ghose on the other hand contended for the opposite party that the promulgation of the Ordinance being a 'thing done' within the meaning of the saving provision in Section 102(4) the Ordinance is alive even with regard to 'Provincial Subjects.' In view of our decision as to the scope and effect of the saving provision in Section 102, Constitution Act it is not necessary for us to decide this question.

11. With regard to the decision of Khundkar J., in the case of Manindra Nath Banerjee v. A. K. Fazlul Huq, reported in 51 C. W. N. 148, it is to be noticed that it consists of two parts. The first part decides that after the expiry of the Control Order on 30th September 1946 a proceeding under para. 9B of the Control Order could be continued only under Section 17 of the Rent Ordinance (V [5] of 1946) and the second part decides that the relief under Section 17 of the Ordinance is discretionary and not mandatory. From what we have stated above as to the scope and effect of Section 102 (4), Constitution Act as interpreted by the Federal Court in the case of J.K. Gas Plant Manufactitring Co. v. Emperor, 52 C. W. N. (F. C. R.) 25 : (A. I. R (34) 1947 F. C. 38), it will appear that Para. 9B of the Control Order remains alive for the purposes of a proceeding commenced under it before the date of expiry although it is dead for all other purposes. We therefore respectfully differ from the first part of the decision of Khundkar J., in the aforesaid case and express no opinion on the second part.

12. The result of our decision is that in spite of the expiry of the Control Order on 30th September 1946 the Small Cause Court Judge had jurisdiction to decide the application filed by the opposite party on 12th July 1946 and that Para. 9B of the Control Ordinance remained alive for the purposes of this proceeding.

13. As all the points raised by the petitioner fail the Rule must be discharged; with regard to costs it appears that the case was kept pending in this Court for an unnecessarily long period at the instance of the opposite party. There will therefore be no order as to costs.

14. Certificate is granted under Section 205, Government of India Act as this case involves the question of construction of Section 102 of the said Act.

G.N. Das, J.

I agree.


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