ivil Appeal No 2984 of 1983
From the Judgment and Order dated 1951982 of the Patna High Court in Appellate Decree No 275 of 1981
554 Govind Mukhoty and KN Rai for the Appellant
FS Nariman and Ranjit Kumar for the Respondents
The Judgment of the Court was delivered by SHARMA J
The question which arises in this appeal by special leave is whether the default by a tenant in payment of rent for the period before the Bihar Buildings Lease Rent and Eviction Act 1947 hereinafter referred to as the Bihar Rent Act was extended and became applicable can be the basis for holding him a defaulter within the meaning of clause d of section 111 of the Bihar Rent Act 1947 and therefore liable to be evicted
The building in question is in Danapur Cantonment area near the town of Patna
The appellant was inducted as a tenant therein by the owner one Janki Devi under a document of lease for a fixed period
Since the deed was not executed in accordance with the requirements of law it remained inoperative
After the period was over Janki Devi institut ed a suit on 10121968 for eviction of the appellant and for a decree for arrears of rent for the period May to August 1968 which was registered as Title Suit No 3 17 of 1968
The Bihar Rent Act was not then applicable to Danaput Cantonment
During the pendency of the case on 1421970 the provisions of the Bihar Rent Act were extended to this area
Presumably in view of the fact that the lease deed could not be treated to be valid in the eye of law a prayer for withdrawal of the relief for eviction was made by the plain tiff and was allowed with leave to file a fresh suit
A decree for arrears of rent however was passed
The present suit was filed on 2851974 for eviction of the appellant on the grounds of bona fide personal necessity and default in payment of rent for the periods May to July October and November 1968 December 1969 to Febru ary 1970 and December 1973 to April 1974
The trial court decreed the suit on both the grounds
On appeal by the appellant the learned Subordinate Judge reversed the find ing on the question of bona fide personal necessity but affirmed the decree on the ground of default
The High Court has by the impugned judgment maintained the decree
The appellant denied the allegation that he has defaulted in payment of rent
The first appellate court on a consideration of the evidence held that the appellant did default in payment of rent for 555 May June July October and November 1968 and December 1969 to February 1970 and on that basis decreed the suit
It has been contended on behalf of the appellant that non payment of rent for the period before 1421970 when the Bihar Rent Act was not applicable to the Cantonment area is not relevant and since the rent of less than a month in February 1970 remained unpaid after the Bihar Rent Act was extended it could not be legitimately made the basis for the decree of eviction
The High Court agreed with the appellant that the Bihar Rent Act did not apply to the Cantonment area with retrospective effect but proceeding further it said that in view of the decision in Kapur Chand Jain vs BS Grewal and others   it must be held that the Act although prospective in its application takes into account the default in payment of rent of the earlier period
There is no manner of doubt that the Act was applied to the area concerned on 1421970 with prospective effect
The question whether the Legislature intended to include previous default of the tenant in payment of rent within the grounds for eviction has to be answered by construing the language of the relevant provisions in the Bihar Rent Act
Although in Kapur Chand s case supra a similar dispute was raised it is not permissible to apply the decision irre spective of the difference in language of the two statutes
It is true that section 9 of the Punjab Security of Land Tenures Act 1953 hereinafter referred to as the Punjab Act which was relevant in the reported case also dealt with the grounds for eviction of a tenant but there was clear indi cation in the section that the grounds for eviction included the earlier default also
The relevant portion of the sec tion as quoted in the judgment reads as follows 91 Notwithstanding anything contained in any other law for the time being in force no land owner shall be competent to eject a tenant except when such tenant i is a tenant on the area reserved under this Act or is a tenant of a small landowner or ii fails to pay rent regularly without sufficient cause or iii is in arrears of rent at the commence ment of this Act or 556 Explanation For the purposes of clause iii a tenant shall be deemed to be in arrears of rent at the commencement of this Act only if the payment of arrears is not made by the tenant within a period of two months from the date of notice of the execu tion of decree or order directing him to pay such arrears of rent
 It will be seen that clause iii in unambiguous terms refers to the arrears of rent for the period before the commencement of the Punjab Act
Dr YS Chitale learned counsel for the landlord Respondent contended that the judgment of this Court rested on the interpretation of clause ii of section 91 of the Punjab Act which did not contain any words similar to those in clause iii
Strongly relying on the following observation In our opinion the conduct of the tenant prior to the coming into force of the new section can be taken into account
No doubt a statute must be applied prospectively
But a statute is not applied retrospectively because a part of the requisite for its action is drawn from a moment of time prior to its passing
The clause in question makes a par ticular conduct the ground for an application for eviction
 It was urged that the Bihar Act contained similar provisions and the ratio in Kapur Chand s case is fully applicable
In view of vital difference in the language of the two Acts we do not find ourselves in a position to accept the argument
Having regard to the scheme of the Punjab Act and the language used therein specially the words mentioned in clause iii of section 91 it is apparent that the Act took into consideration the earlier default in payment of rent within the grounds for eviction
There was no dispute in Kapur Chand s case about the construction of the section
The point which was raised before this Court was whether the past conduct of the tenant could be legitimately taken into account by the statute which was prospective in application
And this point was answered in favour of the landlord
In the case before us the appellant is not contending that the past conduct of a tenant cannot be taken into account by the Legislature if it so intends
The question is whether such an intention can be spelled out from section 111d of the Bihar Rent Act which reads as follows 557 11
Eviction of tenants
1 Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the and to those of section 12 where a tenant is in possession of any building he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds d where the amount of two months  rent lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or in the absence of such contract by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with section 13  7
Dr Chitale has streneously contended that even independent of the Bihar Rent Act the tenant appellant was under a duty to regularly pay the monthly rent by the corre sponding succeeding month under the provisions of the Transfer of Property Act and if he defaulted in due per formance of his duty he must be presumed to be made liable for eviction by the Legislature while enacting section 111d
He emphasised that clause d was not saddling the tenant with a new duty which was not there earlier
The Act intends to deprive the erring tenant negligent in payment of rent from its benefits and there is therefore no reason to hold that his earlier conduct is not to be taken into account
The argument does not appear to be sound inasmuch as it ignores the following words towards the end of clause d quoted above which appear to us to be very illuminating  or by not having been validly remitted or deposited in accordance with section 13 8
Ordinarily where a tenant offers the rent which is refused by the landlord without any justifiable reason the tenant is held to have fully performed his duty
Under the Bihar Rent Act however the position is a little different
Even on the refusal by the landlord to accept rent lawfully offered by the tenant the tenant is under a further duty as mentioned in section 131 to remit such rent by postal money order 558 to the landlord
Where a bona fide doubt arises as to the person who is entitled to receive rent the tenant is permit ted by section 132 to deposit the rent in the prescribed man ner
The latter part of section 111d quoted above deals with cases attracting section 13
The result is that if a tenant has made a proper offer to pay the rent and the landlord has unreasonably refused to accept it the tenant cannot escape the liability of eviction under clause d unless he proves that he had further remitted the rent by postal money order
This position is fully settled
If the situation is analysed in this light it will be seen that clause d can be held to apply only where section 13 of the Bihar Rent Act is attracted
If section 13 cannot be applied to a particular situation clause d also would not apply
section 13 could not obviously be applicable before the Act was extended to the area in ques tion
Consequently it must be held that the default for the earlier period cannot be the basis for a decree of eviction under section 111d
Mr FS Nariman who also argued on behalf of the respondent feebly suggested that the extension of the Bihar Rent Act to the Cantonment area may be held to be applicable with retrospective effect in view of sub sections 2 and 4 of section 3 of the 
Dr Chitale also referred to the observa tion in paragraph 8 of the judgment in Smt
Sant Kaur and another vs Ganesh Chaudhary AIR 1949 Patna 137 on the question of retrospectivity
We do not find any merit in the argument
The language of the Bihar Rent Act is clear and does not admit any doubt about its prospective nature
So far as section 3 of the Cantonments Act is concerned sub section 2 merely permits the Central Government to extend any rent enactment from an earlier date subject to certain limita tions and sub section 4 is irrelevant in the present context as its scope is limited to dealing with orders and decrees passed before the extension of a rent law to a Cantonment area
When this was pointed out to Mr Nariman he did not further pursue with his argument and Dr Chitale in express terms conceded that the Bihar Rent Act could not be interpreted to have been extended to the Cantonment area with retrospective effect
In that view we need not detain ourselves further on this point
Mr Nariman lastly urged that the appellant also defaulted in payment of rent for December 1973 to April 1974 a period of five months after the Act was applied to the cantonment area and the impugned decree therefore should not be disturbed
On behalf of the appellant it was suggested that in view of the finding in paragraph 12 of the judgment of the first appellate court it should be presumed that the 559 respondents  case of default for the subsequent period was rejected
We have been taken through the judgments of the first appellate court and the High Court and we find that the controversy with respect to the alleged default for the later period has been left undetermined
Since the question is dependent on an appraisal of the evidence led by the parties we are of the view that the case should be remitted to the first appellate court for the decision on the ques tion whether the plaintiff landlord has proved the defend ent tenant s default in payment of rent for the period December 1973 to April 1974
If the learned Subordinate Judge comes to the conclusion that the tenant did default within the meaning of section 111d of the Bihar Buildings Lease Rent and Eviction Act 1947 for two months or more during this period he would decree the suit otherwise the suit would be dismissed
In the result the appeal is allowed the judgments of the High Court and the first appellate court are set aside and the case is remitted to the first appellate court for fresh decision in the light of the observations made above
The costs shall follow the final result in the suit
GN Appeal al lowed


Summary:
The rule against clogs on the equity of redemption embodied in section 60 of the Transfer of Property Act empowers the Court not only to relieve a mortgagor of a bargain whereby in certain circumstances his right to redeem the mortgage is wholly taken away but also where that right is restricted
The extent of this latter power is however limited by the reason that gave rise to it namely the unconscionable nature of the bargain which to a court of equity would afford sufficient ground for relieving the mortgagor of his burden and its exercise must therefore depend on whether the bargain in the facts and circumstances of any particular case was one imposed on the mortgagor by taking advantage of his difficult and impecunious position at the time when lie borrowed the money
Vermon vs Bethell   and D and C Kreglinger vs New Patagonia Meat and Cold Storage Company Ltd  relied on
Santley vs Wilde 1913 L R 41 I A 84 and Mohammad Sher Khan vs Seth Swami Dayal 1912 L R 49 I A 60 refer red to
Consequently in a suit for redemption where the mortgage deed by two distinct and independent terms provided that 1 the mortgage shall not be redeemed for eightyfive years and 2 that it could be redeemed only after that period and within six months thereafter failing which the mortgagor would cease to have any claim on the mortgaged property and the mortgage deed would be deemed to be a deed of sale in favour of the mortgagee and it was clearly evident from the facts and circumstances of the case that the bargain was quite fair and one as between parties dealing with each other on an equal footing  Held that the term providing for a period of eightyfive years was not a clog on the equity of redemption and the mere length of the period could not by itself lead to an inference that the bar
gain was in any way oppressive or unreasonable
The term was enforceable in law and the suit for redemption filed before the expiry of the period was premature
Held further that the term that on the failure of the mortgagor to redeem within the specified period of six months he 65 510 would lose his right to do so and the mortgage deed was to be deemed to be a deed of sale in favour of the mortgagee was clearly a clog on the equity of redemption and as such invalid but its invalidity could not in any way affect the validity of the other term as to the period of the mortgage that stood clearly apart