Case: Chandrasingh Manibhai &amp; Others Vs. Surjit Lal Ladhamal Chhabda &amp; Others

Act, 1882.(3) No decree for eviction shall be passed in any such suit if, at the hearing of the suit, the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit.Explanation -In any case where there is a dispute 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-s. (2), he makes an application to the Court under sub s. (3) of S. 11 and thereafter pays or tenders the amount or rent or permitted increases specified in the order made by the Court."6. This is the substantive section giving protection to the tenant against ejectment. Section 50 which occurs in Part IV dealing with miscellaneous matters is the repeal section. It repeals the Act of 1939 and the Act of 1944, and while repealing these statutes it provides as follows :"Provided that all suits and proceedings(other than execution proceedings and appeals)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 II apply and all suits and proceedings by a manager of a hotel or an owner of a lodging house against a lodger for the recovery of charges for, or possession of, the accommodation provided in a hotel or lodging house situate in an area to which Part III applied, 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 ; and thereupon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings :Provided further that -(a) every order passed or act done by the Controllers under Part IV of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944 and every order or act deemed to have been passed or done under that Part shall be deemed to have been passed or done under this Act ; and(b) all proceedings pending before the Controllers under Part IV of that Act shall be transferred to and continued before the Controllers appointed under this Act as if they were proceedings instituted before the Controllers under this Act."7. The H. C. held that S. 50 merely provided for transfer of pending suits and proceedings to Courts given jurisdiction under the Act to hear their and that from its ambit execution proceedings and appeals were excluded because no question could arise of their being transferred from one Court to another and that an appeal being a continuation of the suit and in the nature of a re-hearing, the provisions of S. 12 should be applied to pending appeals. The opinion expressed by the D.B on the construction of Ss. 12 and 50 of the Act was questioned in Nilkanth v. Rasiklal, A. I. R. (36) 1949 Bom 210 : (I. L. R. (1949) Bom. 265 F. B ), and the matter was referred to a F. B The F. B. overruled the decision reached by the D. B. on the construction of S. 50 and observed that it was clear that in terms the provision of the new Act and the rules made thereunder are made to apply only to such suits and proceedings which are transferred under the provisions of this section and that its retrospective effect is confined to what is expressly stated in S. 50 of the Act. We are in respectful agreement with the view expressed by the F. B. On a plain reading of the language of Ss. 12 and 50 it seems clear to us that the Act was given retrospective operation only to a limited extent and execution proceedings and appeals were excluded from this effect and were to be governed by the provisions of the law in force at the time when the decrees were passed. The concluding words of S. 50 "and there upon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings" fully bear out this construction. Mr. Daphthary contended that the whole object of S. 50 was to make provision for transfer of pending cases to Courts which were given jurisdiction under the Act to hear them and the section did not concern itself with the extent of the retrospective operation of the Act, and that S. 12 of the Act which gives protection to tenants should be construed as having retrospective effect In our opinion, this contention is not sound. Section 50 cannot be described as a section providing merely for transfer of pending cases to Courts having jurisdiction to deal with them. It is on the other hand a repeal" section in the new statute. It repeals the two earlier statutes, and while repealing them it provides that the repeal shall not affect "executions and appeals" and that the provisions of the Act shall apply to all pending suits which shall be transferred to the Courts having jurisdiction to hear them under S. 28 of the Act. We are also inclined to agree with the view of the F. B. that S. 12 is in terms prospective and not retrospective. Sub-section (2) clearly relates to suits which may be instituted after the Act comes into force. It cannot apply to suits which were already pending when the Act was put on the statute book. Sub-section (3) which gives the right to the tenant to pay or tender the rent at the hearing of the suit only applies to those suits which may be instituted after the Act comes into operation because it in terms states in such suit" and not in any suit. such suit can only be a suit referred to in sub-ss. 2 and 3 of S. 12.8.

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

Explanation:
1[ds]We are also not impressed with the argument of the learned counsel for the applts. that the H. C. wrongly reversed the finding of the trial Judge on the point that the resps. committed breaches of the terms of the lease. We should not however be taken to concur in all the reasons given by the H. C. for reversing thatH. C. held that S. 50 merely provided for transfer of pending suits and proceedings to Courts given jurisdiction under the Act to hear their and that from its ambit execution proceedings and appeals were excluded because no question could arise of their being transferred from one Court to another and that an appeal being a continuation of the suit and in the nature of a re-hearing, the provisions of S. 12 should be applied to pending appeals. The opinion expressed by the D.B on the construction of Ss. 12 and 50 of the Act was questioned in Nilkanth v. Rasiklal, A. I. R. (36) 1949 Bom 210   : (I. L. R. (1949) Bom. 265 F. B ), and the matter was referred to a F. B The F. B. overruled the decision reached by the D. B. on the construction of S. 50 and observed that it was clear that in terms the provision of the new Act and the rules made thereunder are made to apply only to such suits and proceedings which are transferred under the provisions of this section and that its retrospective effect is confined to what is expressly stated in S. 50 of the Act. We are in respectful agreement with the view expressed by the F. B. On a plain reading of the language of Ss. 12 and 50 it seems clear to us that the Act was given retrospective operation only to a limited extent and execution proceedings and appeals were excluded from this effect and were to be governed by the provisions of the law in force at the time when the decrees were passed. The concluding words of S. 50 "and there upon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings" fully bear out this construction. Mr. Daphthary contended that the whole object of S. 50 was to make provision for transfer of pending cases to Courts which were given jurisdiction under the Act to hear them and the section did not concern itself with the extent of the retrospective operation of the Act, and that S. 12 of the Act which gives protection to tenants should be construed as having retrospective effect In our opinion, this contention is not sound. Section 50 cannot be described as a section providing merely for transfer of pending cases to Courts having jurisdiction to deal with them. It is on the other hand a repeal" section in the new statute. It repeals the two earlier statutes, and while repealing them it provides that the repeal shall not affect "executions and appeals" and that the provisions of the Act shall apply to all pending suits which shall be transferred to the Courts having jurisdiction to hear them under S. 28 of the Act. We are also inclined to agree with the view of the F. B. that S. 12 is in terms prospective and not retrospective. Sub-section (2) clearly relates to suits which may be instituted after the Act comes into force. It cannot apply to suits which were already pending when the Act was put on the statute book. Sub-section (3) which gives the right to the tenant to pay or tender the rent at the hearing of the suit only applies to those suits which may be instituted after the Act comes into operation because it in terms states in such suit" and not in any suit. such suit can only be a suit referred to in sub-ss. 2 and 3 of S. 12.