Appeal No 49 of 1961
Appeal by special leave from the judgment and order dated August 11 1960 of the Bombay High Court in Civil Revision Application No 320 of 1959
MC Setalvad Attorney General for India Ramesh
war Nath section N Andley and P L Vohra for the appellants
CK Daphtary Solicitor General of India Naushir Barucha and K R Choudhuri for the respondent
April 21
The Judgment of the Court was delivered by HIDAYATULLAH J
This is a tenant s appeal with the special leave of this Court against an order of Naik J of the High Court of Bombay in Civil Revision Application No 320 of 1959 by which he 161 disallowed certain pleas raised by the appellants
The respondent is the landlord
On September 11 1942 the appellants had executed a rent note under which they were in occupation of the premises in dispute
The period of the tenancy was 15 years and it expired by efflux of time on March 14 1957
The landlord thereupon filed a suit on April 25 1957 for possession of the premises in the Court of the Joint Civil Judge Junior Division Erandol
Meanwhile under section 6 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 to be called the Act in this judgment a notification was issued applying Part II of the Act to the area where the property is situated
The appellants claimed protection of section 12 in Part 11 of the Act which deprived the landlord of the right of possession under certain circumstances
The Civil Judge framed three preliminary Issues which were as follows 1 Whether this Court has jurisdiction to try the suit 2Whether the plaintiff s suit for possession of the suit property is maintainable in view of the Notification issued by the Government of Bombay on 16th August 1958 applying Part II of the Bombay Rents Hotel and Lodging House Rates Control Act If not what order should be passed 3What order
These Issues were decided against the appellants
They filed a revision petition before the High Court of Bombay which was dismissed by the order under appeal
Naik J who heard the revision followed a previous Full Bench ruling of the Bombay High Court reported in Nilkanth Ramachandra vs Rasiktal 1
In that case Chagla C J Gajendragadkar and Tendolkar JJ concurring had held that section 12 of the Act was prospective and did not apply to pending cases
Reliance was also placed by Naik J on the decision of this Court in Chandrasingh Manibhai vs Surjit Lal Sadhamal Chhabda 2 where the opinion of the Full Bench of the Bombay High Court was approved
1 2  21 162 Two Questions have been raised in this appeal and they are 1 whether by virtue of the first proviso to section 50 of the Act all the provisions of Part 11 including section 12 were not expressly made applicable to all suits and 2 whether by virtue of section 121 of the Act which applied independently by the extension of the Act to the area where the property is situate the suit was not rendered incompetent and the landlord deprived of his remedy of possession
Before we deal with these contentions it is necessary to see some of the relevant provisions of this Act
The Act was not the first to be passed on the subject of control of houses etc
Previously there were two other Acts in force in the State of Bombay viz the Bombay Rent Restriction Act 1939 and the Bombay Rents Hotel Rates and Lodging House Rates Control Act 1944
By section 50 of the Act these Acts were repealed
The first proviso however enacted omitting unnecessary parts Provided that all suits and proceedings between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part 11 apply  which are pending in any Court shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under this Act or shall be continued in such Courts as the case may be and all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings
 It is this proviso which it is claimed has retrospective effect and section 12 of the Act which is in Part II is said to apply to all pending cases whenever the Act is extended to fresh areas
Section 12 of the Act reads as follows 121 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 the 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
163 2No 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 
3a 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
bIn 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
4Pending disposal of any such suit the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit
Explanation
In any case where there is a dis pute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if before the expiry of the period of one month after notice referred to in sub section 2 he makes an application to the Court under sub section 3 of section II and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court
 164 By sub sections
1 and 2 of the second section which dealt with the extent of the application of the Act it was provided that Parts I and IV of the Act shall extend to the pre Reorganisation State of Bombay excluding transferred territories and Parts II and III shall extend respectively to the areas specified in Schs
I and II to the Act and shall continue to extend to any such area notwithstanding that the area ceased to be of the description therein specified
By sub section 3 the State Government was authorised by notification in the Official Gazette to extend to any other area any or all the provisions of Part II or Part III or of both
It would appear from this that Parts I and IV came into operation throughout the territories of the pre Reorganisation State of Bombay
Part II came to be extended to this area by the notification and after that extension Parts 1 11 and IV of the Act began to apply while the suit was pending
We are not concerned in this appeal with Part 111
The contention on behalf of the appellants is that by the latter part of the proviso to section 50 relevant portions of which have been quoted earlier all the provisions of Part II were extended to this area and that all pending suits and proceedings were governed no matter when filed
The notification extending Part II of the Act to this area had it is contended also the same effect independently of the first proviso to section 50
It is contended therefore that sub section 1 of section 12 which prohibits a landlord from recovering possession of any premises so long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases if any and is also observing the other conditions of the tenancy in so far as they are not inconsistent with the provisions of the Act applies to the present case and the tenants are protected
It is also contended that if the first proviso to section 50 was limited to such suits only as were pending on the date of the passing of the Act section 121 on its own terms is applicable to the present case and being retrospective in character leads to the same result
These two contentions were apparently raised in the Court of the Civil Judge and before the High 165 Court
The High Court however ruled that section 12 was prospective in character and did not apply to pending suits or proceedings
It is contended by the learned Attorney General what the construction placed by the High Court upon the first proviso to section 50 is erroneous
Though he section concedes that the proviso must be read as qualifying what the substantive part of section 50 enacts he urges that the proviso goes beyond that purpose and enacts a substantive law of its own
He relies upon the following observations of Lord Loreburn L C in Rhondda Urban Council vs Taff Vale Railway 1 where a pro viso to section 51 of the Railway Clauses Consolidation Act 1845 was under consideration It is true that section 51 is framed as a proviso upon preceding sections
But it is also true that the latter half of it though in form a proviso is in substance a fresh enactment adding to and not merely qualifying that which goes before and contends that the latter portion of the proviso in question being a substantive enactment comprehends not only those suits which were pending on the date of repeal but also those cases which came within the language of the latter part of the proviso whenever the Act was extended to new areas
On behalf of the landlord the learned Solicitor General argues that the proviso should be read as a proviso only to the substantive enactment and must be taken to qualify the substantive portion of section 50 only to the extent to which it makes an exception to the repeal and but for the proviso would be governed by the repealed Acts
He relies upon Craies on Statute Law 5th Edn pp201 202 where the following passage occurs The effect of an excepting or qualifying proviso according to the ordinary rules of construction is to except out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and 1  258166 properly construed without attributing to it that effect
 He also relies upon the following observations of Lush J in Mullins vs Treasurer of Surrey 1 When one finds a proviso to a section the natural presumption is that but for the proviso the enacting part of the section would have included the subject matter of the proviso
The law with regard to provisos is well settled and well understood
As a general rule a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily a proviso is not interpreted as stating a general rule
But provisos are often added not as exceptions or qualifications to the main enactment but as savings clauses in which cases they will not be construed as controlled by the section
The proviso which has been added to section 50 of the Act deals with the effect of repeal
The substantive part of the section repealed two Acts which were in force in the State of Bombay
If nothing more had been said section 7 of the Bombay General Clauses Act would have applied and all pending suits and proceedings would have continued under the old law as if the repealing Act had not been passed
The effect of the proviso was to take the matter out of section 7 of the Bombay General Clauses Act and to provide for a special saving
It cannot be used to decide whether section 12 of the Act is retrospective
It was observed by Wood V C in Fitzgerald vs Champneys2 that saving clauses are seldom used to construe Acts
These clauses are introduced into Acts which repeal others to safeguard rights which but for the savings would be lost
The proviso here saves pending suits and proceedings and further enacts that suits and proceedings then pending are to be transferred to the Courts designated in the Act and are to continue under the Act and any or all the provisions of the Act are to apply to them
The learned Solicitor General contends that the savings clause enacted by the proviso even if treated as substantive law must be taken to 1  1732  ER 958167 apply only to suits and proceedings pending at the time of the repeal which but for the proviso would be governed by the Act repealed
According to the learned Attorney General the effect of the savings is much wider and it applies to such cases as come within the words of the proviso whenever the Act is extended to new areas
These arguments are interesting and much can be said on both Bides particularly as the Legislature has by a subsequent amendment changed the proviso
But in our opinion they need not be considered in this case in view of what we have decided on the second point
The second contention urged by the learned Attorney General that section 121 applied from the date on which the Act was extended to the area in question is in our opinion sound
Section 121 enacts a rule of decision and it says that a landlord is not entitled to possession if the tenant pays or shows his readiness and willingness to pay the standard rent and to observe the other conditions of the tenancy
The word tenant is defined in the Act to include not only a tenant whose tenancy subsists but also any person remaining after the determination of the lease in possession with or without the assent of the landlord
The present appellants as statutory tenants were within the rule enacted by section 121 and entitled to its protection if the sub section could be held applicable to this suit
Both the Bombay High Court and this Court had on the previous occasions observed that section 12 of the Act was prospective
In those cases the learned Judges were concerned with the interpretation of sub sections 2 and 3 only which as the words of those subsections then existing show were clearly prospective and were applicable to suits to be instituted after the coming into force of the Act
But a section may be prospective in some parts and retrospective in other parts
While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication many Acts though prospective in form 168 have been given retrospective operation if the intention of the legislature is apparent
This is more so when Acts are passed to protect the public against some evil or abuse
See Craies on Statute Law 5th Edn p 365
The sub section says that 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 the standard rent etc and observes and performs the other conditions of the tenancy
In other words no decree can be passed granting possession to the landlord if the tenant fulfils the conditions above mentioned
The Explanation to section 12 makes it clear that the tenant in case of a dispute may make an application to the Court under sub section3 of section 11 for fixation of a standard rent and may thereafter pay or tender the amount of rent or permitted increases specified in the order to be made by the Court
The tenants in the present case have expressed their readiness and willingness to pay and it is clear that they fulfil the requirements of sub section1 of section 12 and the landlord is therefore not entitled to the relief of possession
Both the High Court as well as this Court in their previous decisions referred to above were not called upon to interpret sub section 1 of the Act
They were dealing with appeals arising out of decrees already passed
The observations that section 12 was prospective were made with reference to sub sections 2 and 3 and not with respect to sub section1 which did not even find a mention in those judgments
The question then was whether section 12 by itself or read with the proviso to section 50 was applicable retrospectively to appeals
That is not the question which has arisen here
Then again section 121 enacts that the landlord shall not be entitled to recover possession not no suit shall be instituted by the landlord to recover possession
The point of time when the sub section will operate is when the decree for recovery of possession would have to be passed
Thus the language of the sub section applies equally to suits pending when Part 11 comes into force and those to be filed subsequently
The contention of the respondent that the operation of section 121 169 is limited to suits filed after the Act comes into force in a particular area cannot be accepted
The conclusion must follow that the present suit cannot be decreed in favour of the respondent
The decisions of the High Court and the Court of First Instance are thus erroneous and must be set aside
In the result the appeal is allowed and the two preliminary Issues are answered in favour of the appellants
Under the orders of this Court the judgment of the Civil Judge was stayed
The suit will now be decided in conformity with our judgment
The respondent shall pay the costs of this Court and of the High Court
Appeal allowed


Summary:
On the expiry of the appellant s tenancy for the occupation of the premises indispute the respondent who was the landlord filed a suit for possession of the premises
Meanwhile under section 6 of the Bombay Rents Hotel and Lodging House Rates Control  a notification was issued applying Part 11 of the Act to the area where the property was situated
The appellants claimed protection of section 12 Part 11 of the Act which deprived the landlord of the right of possession under certain circum stances
The Court of first instance decided the suit against the appellant and the High Court ruled that section 12 was prospective in character and did not apply to pending suits or proceedings
On appeal by special leave Held that the point of time when sub section
1 of section 12 operates is when the decree for recovery of possession has to be passed
The language of the sub section which provides that the landlord is not entitled to recover possession if the tenant pays or shows his willingness to pay the standard rent and to observe the other conditions of the tenancy is such that it applies equally to suits pending when Part It comes into force and those to be filed subsequently and is not limited only to suits filed after the Act comes into force in a particular area
A section may be prospective in one part and retrospective in another part
Sub sections 2 and 3 of section 12 were clearly prospective but the words of the first sub section showed retrospective operation
Nilkanth Ram Chandra vs Rasiklal and Chandra Singh Manibhai vs Surjitlal Sudhamal Chhabda   distinguished
Rhonda Urban Council vs Taff Vale Railway  Mullins vs Treasury of Surrey and Fitzgerald vs Champneys   referred to