Case: Dewaji Vs. Ganpatlal

1951-52.8. The appeal was then heard by Badkas, J. It was argued before him that Vyas, J., should not have referred the issue to the Revenue Officer for decision under Section 16 of the 1951 Act, but Badkas, J., held that it would not be appropriate or him to sit in judgment over the decision given by Vyas, J., and that the reference made by Vyas, J., under Section 16 of the 1951 Act had to be accepted. Accepting the finding of the Revenue Courts, Badkas, J., held that the respondent was not entitled to eject the appellant. He further held that it was not necessary to decide whether the 1951 Act was retrospective or not as the 1951Act came into force during the year in which the defendant held survey numbers in question as lessee. He accordingly allowed the appeal.9. Having obtained leave, the respondent appealed under the Letters Patent. It was urged before the Letters Patent Bench on behalf of the appellant that the Bench could not deal with the question whether the 1953 Act applied to pending proceedings on the ground that this point had not been argued before the learned Single Judge. The Bench found no substance in this contention as the point had been raised before the learned Single Judges. The Bench further held that there was no bar to the question of application of the 1953 Act being allowed to be raised.10. Dealing with the merits, the Bench held that:"taking the scheme of the Act into account and the fact that there is no Section in the Act which makes the Act applicable to pending proceedings, it is at once clear that it was not intended to affect pending proceedings. Pending proceedings must continue unaffected by the provision of the Act and whatever questions arose in those proceedings must be decided by the Civil Courts."11. The Bench then accepting the finding of the Civil Courts, held that there was no defence to the suit and the suit must succeed. The Bench also repelled the argument that it was not open to it to consider the entire merits of the Second Appeal as the leave had been given by Badkas, J., and not by Vyas, J. The Bench observed that there was no substance in the contention since the judgment of Vyas, J., was never open to the appeal it being an interlocutory judgment.12. The learned Counsel for the appellant contends that Sections 16, 16A and 16B, as substituted by the 1953 Act, had clearly ousted the jurisdiction of the Civil Courts and Vyas, J., was right in sending the case to Revenue Courts for decision on the question whether the appellant was a tenant in the year 195l-52 or not. He stresses the word "whenever appearing in Section 16 and says that this is a wide word and no limitation can be placed on it. In our view there is no substance in this contention. The first point to be noticed in this connection is that the 1953 Act came into force after the Trial Court had decreed the suit and an appeal was pending before the District Judge.It cannot be disputed that if the Legislature intends to oust the jurisdiction of Civil Courts, it must say so expressly or by necessary implication. We cannot find any words in Secs, 16, 16A and 16B which can lead to the necessary inference that these provisions were intended to apply to appeals pending when the 1953 Act came into force. It is true that the word "whenever" is wide but Section 16A uses the words "suit or proceeding" and these words do not ordinarily indicate appellate proceedings. Further, Section 16B uses the word "entertain" and not the words "entertain or try any suit" as contained in Section 15 (2) of the 1951 Act. If the intention was to affect pending proceedings, the word "try" along with the word "entertain" would have been used in Section 168 of the 1953 Act. It seems to us that the intention was not to apply the 1953 Act to pending appeals.Sections 16, 16A and 16B do not bar the jurisdiction of the Civil Courts in this case, the Letters Patent Bench was right in accepting the findings given by the Trial Court and the District Court in holding that the appellant was not a tenant for the year 1951-52.13. The learned Counsel then contends that it was not open to the Letters Patent Bench to decide this question of the applicability of Sections 16, 16A and 16B because Vyas, J., had decided to the contrary and had not given leave to appeal against his order.It seems to us that the order of Vyas, J., was interlocutory and it was not necessary for the respondent to obtain separate leave to appeal aginst this order. It was open to the Letters Patent Bench to decide all points decided by Vyas, J., in the interlocutory order dated August 21, 1957. At any rate the same point was raised before Badkas, J. Further, as held by this Court in Satyadhyan Ghosal v. Smt. Deorajin Devi, 1960-3 SCR 590 = (AIR 1960 SC 941 ),"an interlocutory order which did not terminate the proceedings and which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken, could be challenged in an appeal from the final decree or order:"Section 105 (2), C. P. C., does not apply in this case, and, therefore, the Letters Patent Bench was entitled to go into the validity of the order passed by Vyas, J.14. The learned Counsel then urged that this was a new point and the Letters Patent Bench should not have allowed it to be taken. But we agree with the Bench that the point had been raised before the learned Single Judges. In view of this it is not necessary to decide whether a new point can be taken up in a Letters Patent appeal or not.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. Having obtained leave, the respondent appealed under the Letters Patent. It was urged before the Letters Patent Bench on behalf of the appellant that the Bench could not deal with the question whether the 1953 Act applied to pending proceedings on the ground that this point had not been argued before the learned Single Judge. The Bench found no substance in this contention as the point had been raised before the learned Single Judges. The Bench further held that there was no bar to the question of application of the 1953 Act being allowed to beis true that the word "whenever" is wide but Section 16A uses the words "suit or proceeding" and these words do not ordinarily indicate appellate proceedings. Further, Section 16B uses the word "entertain" and not the words "entertain or try any suit" as contained in Section 15 (2) of the 1951 Act. If the intention was to affect pending proceedings, the word "try" along with the word "entertain" would have been used in Section 168 of the 1953 Act. It seems to us that the intention was not to apply the 1953 Act to pending appeals.Sections 16, 16A and 16B do not bar the jurisdiction of the Civil Courts in this case, the Letters Patent Bench was right in accepting the findings given by the Trial Court and the District Court in holding that the appellant was not a tenant for the year 1951-52.13. The learned Counsel then contends that it was not open to the Letters Patent Bench to decide this question of the applicability of Sections 16, 16A and 16B because Vyas, J., had decided to the contrary and had not given leave to appeal against his order.It seems to us that the order of Vyas, J., was interlocutory and it was not necessary for the respondent to obtain separate leave to appeal aginst this order. It was open to the Letters Patent Bench to decide all points decided by Vyas, J., in the interlocutory order dated August 21, 1957.The learned Counsel then urged that this was a new point and the Letters Patent Bench should not have allowed it to be taken. But we agree with the Bench that the point had been raised before the learned Single Judges. In view of this it is not necessary to decide whether a new point can be taken up in a Letters Patent appeal or not.