1. This appeal arises out of a suit for recovery of arrears of rent and for enhancement of rent under Section 30 (b), Ben. Ten. Act. The material defences to the suit were: (1) that the arrears were paid and (2) that the claim for enhancement was not maintainable in the civil Court. The Courts below have decreed the claim for arrears of rent but have disallowed the claim for enhancement. Hence this second appeal by the landlords. The only point for determination is whether the plaintiffs are entitled to have the rent of the holding enhanced under Section 30 (b), Ben. Ten. Act. It appears that the landlords instituted proceedings under Section 105, Ben. Ten. Act, before the Revenue Officer some time in 1928. The claim for enhancement of rent of the holding under Section 30 (b) of the Act was the subject-matter of this application. On 26th February 1929, when this application was pending before the Revenue Officer, the Bengal Tenancy Amendment Act of 1928 came into force. It was withdrawn on 24th July 1929. The present suit was instituted on 19th January 1932. The contention of the tenants is that the claim for enhancement in the civil Court is barred by Section 109, Ben. Ten. Act, as it stood before the amending Act of 1928. Section 109 is in these terms:
Subject to the provisions of Section 109-A a civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken under Sub-section 105 to 108 (both inclusive).
2. In Purna Chandra v. Narendra Nath 1925 Cal 845, the effect of the withdrawal of an application under Section 105 came up for consideration before a Full Bench of this Court. Walmsley, J. (Newbould J., C.C. Ghose J., and B.B. Ghose, J., concurring and Suhrawardy, J., dissenting) in that case observed as follows:
In my opinion, therefore, it is the making of the application that brings into play the prohibition of Section 109, and the answer that I would give to the reference is to this effect, namely, that if an application is made under Section 105, Ben. Ten. Act, and subsequently withdrawn, whether with or without the permission of the Court, a suit on the same subject-matter is barred by the provisions of Section 109, Ben. Ten. Act.
3. This decision was given on 6th May 1925. In 1928 the Bengal Tenancy Amendment Act was passed and the following proviso was added to Section 109:
Provided that nothing contained in this Section shall debar a civil Court from entertaining a suit concerning any matter which: (a) was the subject-matter of an application under Section 105, or Section 105-A, or of a suit under Section 106, if such application or suit has been dismissed for default or withdrawn; or (b) has not been finally adjudicated upon in such proceeding or suit.
4. In 1929 the observations of Walmsley, J., were approved by their Lordships of the Judicial Committee of the Privy Council in Raja Reshee Case Law v. Satish Chandra Pal 1929 P C 134. In the latter case their Lordships laid down:
The policy of Section 109 is to prevent multiplicity of procedures by enacting that where an application is made in one or other of the competent Courts it shall be prosecuted in that Court and in no other.
5. The contention of the learned advocate for the tenants however is that Section 109, as it stood before the amendment, is more than a matter of procedure. In support of his contention he relied upon the decision in Gosta Behari v. Nawab Bahadur of Murshidabad 1932 Cal 207. In that case it was held that Section 109, as it stood before this amendment, did not merely lay down a procedure, but by taking away the ordinary right of suit of the plaintiff conferred a very valuable right on the defendant in some cases, viz., the immunity from a civil suit and the right to hold the property in the right mentioned in the Record of Rights without further litigation. On behalf of the landlords it is contended that under the terms of the section, as it stood before its amendment, there was no question of anybody acquiring any right and that the section imposed the disability on intending suitors of which their opponents could take advantage. This contention is supported by the observations of Mukherji, J., in Debendra Lal Khan v. Sudharam Ray 1936 Cal 173. It is not easy to state with precision the exact nature of the distinction between the substantive law and the law of procedure. It is suggested that substantive law defines rights while adjective law determines remedies. There are rights however which belong to the sphere of procedure, as for example, right of appeal.
To define procedure as concerned not with rights, but with remedies, is to confound the remedy with the process by which it is made available. The law of procedure may be defined as that branch of the law which governs the process of litigation. Although there is a distinction in theory between substantive law and procedure there are many rules of procedure which in their practical operation are wholly or substantially equivalent to rules of substantive law. (Salmond on Jurisprudence, Edn. 5, pp. 437-439).
6. Whether a landlord or tenant has a legal right to have fair rent settled of the tenancy is a question of substantive law. This legal right implies a power of instituting legal proceedings for its enforcement in Courts. This power of obtaining in one's favour the judgment of a Court of law is called a right of action (Salmond on Jurisprudence, p. 192). The landlord or the tenant has therefore a right to sue in the Court of law for enforcement of his right. In what Court the right is to be enforced is a question of procedural law, ibid p. 438. The selection of forum in no way affects the right of suit itself, See the observation of Sulaiman, A. C. J., in Ram Karan Singh v. Ram Das Singh 1931 All 635. The policy of Section 109 as has been observed by their Lordships of the Judicial Committee of the Privy Council in Raja Reshee Case Law v. Satish Chandra Pal 1929 P C 134 is to prevent multiplicity of procedure.
While provisions of a statute dealing merely with matter of procedure may properly, unless that construction be textually inadmissible, have no retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.
7. Provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights: 54 I A 421 Delhi Cloth and General Mills Co. v. Income Tax Commissioner Delhi 1927 P C 242. If Section 109 as it stands now does not debar the civil Court from entertaining a suit concerning a matter which was the subject-matter of an application under Section 105 which was withdrawn before the Amending Act of 1928 came into force, it would touch existing rights, as it would deprive the order of withdrawal of its finality under the section in its old form. If by the addition of the proviso to the old section the Legislature removed the bar under the old section in cases in which no final order was made at the time the proviso came into force, there would be no question of depriving any order of its finality. It is true that it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to that rule, namely where enactments merely affect procedure and do not extend to rights of action: 1 Ch D 48 In Re: Joseph Suche & Co., Ltd. (1876) 1 Ch D 48.
8. By giving the landlord, not the tenant, option either to continue the proceeding in the revenue Court and get a judgment from that Court, or to withdraw from the revenue Court and to enforce the right of action in the civil Court, the Legislature did not alter the rights of the parties by destroying or creating a new right of action. The right of action is not touched. The bar imposed by the old section to the trial of the matter in the civil Court is removed. The enactment merely affected the procedure and comes within the exception to the general rule laid down in In Re: Joseph Suche & Co., Ltd. (1876) 1 Ch D 48. There can be no objection to an enactment relating to procedure having effect immediately although it should affect past transactions and the mode of enforcement of vested rights, see Gardner v. Lucas (1878) 3 A C 582 at p. 603, provided of course as Mellish, J., said in Republic of Costa Rica v. Erlanger (1878) 3 Ch D 69, that no injustice is done: [Jogodanandh Singh v. Amrita Lal Sircar (1895) 22 Cal 767 (F B).] Again in Pardo v. Bingham (1870) 4 Ch A 740 Lord Hatherley observed as follows:
Baron Parke did not consider it an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the Section which had to be construed and said that the question in each case was whether the Legislature had sufficiently expressed an intention. In fact we must look to the general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law and what it was that the Legislature contemplated.
9. Section 109, as it stood before the amendment, deprived the landlord or the tenant of their right to have the question of rent settled by the civil Court, once an application under Section 105 was made before the Revenue Officer. The interpretation put upon the language of the section by the Full Bench of this Court must have been brought to the notice of the Legislature. The section, as it stood before its amendment,was doing injustice both to the landlords and the tenants inasmuch as it deprived them of having their rights adjudicated even though the matter was not decided in the revenue Court. The proviso was enacted to remedy this evil. In construing such a measure the Court ought to give to it the widest operation which its language will permit. The Court has got to see whether a particular case is within the mischief to be remedied:see the case of Ujmuddin Khan v. Zia-ul-missa Begum (1878) 6 I A 137. In view of the language used in the proviso I am inclined to think that the present case is within the mischief intended to be remedied by the proviso. Gosta Behari's suit in the civil Court was instituted before the Amending Act. In Jnanendranarayan Bagchi v. Saradasundari Dasi 1931 Cal 25, Rankin, C. J., observed as follows:
I cannot help observing that I think this Court would be making an extraordinary mess of the rights of the agriculturists of Bengal, if it started to apply the 1928 Act retrospectively so as to turn a suit, which had been bad at the time it was brought, into a good suit that could be decreed, merely because it had been kept in existence for two or three years.
10. The present suit however was instituted after the Act of 1928 came into force. For the reasons given above, I allow this appeal, set aside the judgments and the decrees of the Courts below so far as they relate to the appellants' claim for enhancement of rent. The suit is remanded to the trial Court. The learned Munsif is directed to try and determine the plaintiffs' claim for enhancement of rent, after taking such evidence as the parties may choose to given in support of their respective cases.
11. There will be no order for costs in this appeal.