dedol-hf/india-case-legal-rag huggingface dataset:
according to the covenants  of  the lease is concluded by  a
concurrent  finding of fact and nothing that  Mr.  Daphthary
said  in  support of his contention in any way  shakes  that
finding.  The case must therefore be decided on the  assump-
tion that the respondents did not exercise the option  given
to  them under the lease for its renewal.  We are  also  not
impressed  with the argument of the learned counsel for  the
appellants that the High Court wrongly reversed the  finding
of the trial Judge on the point that the respondents commit-
ted breaches of the terms of the tease. We should not howev-
er  be taken to concur in all the reasons given by the  High
Court for reversing that finding.
    Whether  the  High Court was right in holding  that  the
provisions  of Act LVII of 1947 have application to  appeals
pending  at  the  time when that Act came  into  force;  the
answer  to this question depends on the construction  to  be
placed on sections 12 and 50 of Act LVII of 1947. Section 12
of the Act is in these terms:-
    "  (1) 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.
    (2)  No suit for recovery of possession shall be  insti-
tuted  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 Transfer of  Property  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.
225
    Explanation--In any case where there is a dispute as  to
the amount of standard rent or permitted increases recovera-
ble  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 11 and thereafter pays or tenders the  amount
or  rent or permitted increases specified in the order  made
by the court."
    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 posses-
sion  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 applies, which are pending  in  any  Court,
shall  be  transferred to and continued  before  the  courts
which would have jurisdiction to try such suits or  proceed-
ings  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  Control-
lers  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
226
Act  as if they were proceedings instituted before the  Con-
trollers under this Act"
    The High Court held that section 50 merely provided  for
transfer  of pending suits and proceedings to  courts  given
jurisdiction  under the Act to hear them and that  from  its
ambit  execution proceedings and appeals were  excluded  be-
cause  no  question could arise of their  being  transferred
from one court to another and that an appeal being a contin-
uation  of the suit and in the nature of a  re-hearing,  the
provisions  of section 12 should be applied to  pending  ap-
peals.  The opinion expressed by the Division Bench  on  the
construction of sections 12 and 50 of the Act was questioned
in Nilkanth v. Rasiklal (J), and the matter was referred  to
a   Full  Bench.   The Full  Bench  overruled  the  decision
reached by the Division Bench on the construction of section
50  and observed that it was clear that in terms the  provi-
sions of the new Act and the rules made thereunder are  made
to apply only to such suits and proceedings which are trans-
ferred  under  the provisions of this section and  that  its
retrospective effect is confined to what is expressly stated
in  section 50 of the Act.  We are in  respectful  agreement
with  the  view  expressed by the Full Bench.   On  a  plain
reading of the language of sections 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 section 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 section 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 section 12 of the Act  which
gives protection to tenants should
(1) A. I. R. 1949 Bom. 210.
227
be construed as having retrospective effect.  In our opinion
this  contention  is not sound.  Section 50  cannot  be  de-
scribed as a section providing merely for transfer of  pend-
ing  cases to courts having jurisdiction to deal with  them.
It is on the other hand a" repeal" section in the new  stat-
ute.  It repeals the two earlier statutes, and while repeal-
ing  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 section
28 of the Act.  We are also inclined to agree with the  view
of  the Full Bench that section 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 subsec-
tions (2) and (3) of section 12.
The  result therefore is that, in our opinion, the  High
Court erroneously applied the provisions of Act LVII of 1947
to  the appeal in this case and was wrong in allowing it  on
that  basis. In this view of the case it is  unnecessary  to
deal  with the alternative argument of the  learned  counsel
that  this appeal should be decided in accordance  with  the
provisions of Act III of 1949.  We accordingly set aside the
decree of the High Court dismissing the plaintiff's suit and
restore  the decree of the trial Judge decreeing the  plain-
tiff's suit with costs.
                               Appeal allowed.
Agent for the appellants: Naunit Lal.
Agent for the respondents: Rajinder Narain.
30
228
PETITIONER:
COL. D.I.MAC PHERSON
        Vs.
RESPONDENT:
M.N. APPANNA AND ANOTHER.
DATE OF JUDGMENT:
09/02/1951
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
MUKHERJEA, B.K.
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR  184            1951 SCR  161
ACT:
   Contract--Offer  and  acceptance--Statement.  of   lowest
price and counter-offer distinguished.
HEADNOTE:
   On receiving an offer from A for the purchase of a  house
belonging to B, Y who was looking after the house, cabled to
B  that  there was an offer of Rs. 6,000 for the  house.   B
sent a cable in reply on the 5th August, 1944, that he would
not  accept less than Rs. 10,000.  Y conveyed this  informa-
tion  to A on the 9th and on the 14th A wrote a letter to  Y
stating  that  he thereby confirmed the oral  offer  of  Rs.
10,000  that  he had made to Y on the 11th.  On the  26th  Y
cabled  to B as follows: "Offered Rs. 10,000.  May I  sell".
On  the same day, W, another friend  of B, with whom also  B
was  in correspondence, sent an offer for Rs. 11,000  and  B
accepted it.  A sued for specific performance alleging  that
B's  cable  of  the 5th was a counter-offer and  as  he  had
accepted it on the 14th, there was a concluded contract  for
sale in his favour on that day.
   Held,  that  the cable sent by B on the 5th  was  a  mere
statement  of  the lowest price at which he would  sell  and
contained  no implied contract to sell at that  price.   A's
letter of the 14th was under the circumstances only a  fresh
offer;  and as B had not accepted it there was no  concluded
contract in favour of A.
Harvey v. Facey [1803] A.C. 552 applied.
JUDGMENT:
CIVIL  APPELLATE JURISDICTION.   Appeal from a judgment  and
decree  of  the  Judicial Commissioner of  Coorg  dated  1st
April, 1946, in Original Suit No, 1 of 1945.
C.R. Pattabhi Raman, for the appellant.
Jindra Lal, for the respondent.
1951.  February 9. The judgment of the Court was  deliv-
ered by
    FAZL  ALI J.--This is an appeal from a judgment  of  the
Judicial Commissioner of Coorg in a suit filed by the  first
respondent  (hereinafter  referred  to  as  the   plaintiff)
against the appellant (hereinafter referred to as the  first
defendant) and the second respondent
162
(hereinafter  referred to as the second defendant), for  the
specific  performance of a contract.  The  first  defendant'
owned  a bungalow in Mercara known as "Morvern Lodge ".  The
suit  which has given rise to this appeal was instituted  by
the  plaintiff  for the specific performance of  an  alleged
contract of sale in respect of this bungalow.
It  appears that the first defendant owned  certain  es-
tates  in  Mercara,  and one Mr. White  was  an  alternative
director in one of the estates, and Youngman was the manager
of another estate also belonging to the first defendant  and
was  looking after' 'Morvern Lodge" during his  absence.  It
seems  that  about the middle of 1944, the  plaintiff  asked
White if he would cable to the first defendant his offer  of
Rs.  4,000  for the bungalow, and, on the  1st  June,  1944,
White  sent a cable to the first defendant to the  following
effect :--
    "Have  enquiries  Mercara  bungalow if  for  sale,  wire
lowest figure."
    On the 24th July, 1944, the plaintiff wrote to the first
defendant that he was prepared to purchase the bungalow  for
Rs.  5,000 and if the offer was acceptable to him,  he  (the
first defendant) should inform the plaintiff 'to which  bank
he  should  issue a cheque in payment of  the  price.   This
letter was followed up by a cable from Youngman to the first
defendant to the following effect :--
    "Have had offer  Morvern Lodge  rupees six thousand  for
immediate possession."
    On the 8th August, 1944, Youngman received a cable  from
the  first defendant saying: "Won't accept less than  rupees
ten thousand". On the 7th August, 1944, the plaintiff  wrote
to Youngman asking him whether his offer had been  accepted,
and  saying that he was prepared to accept any higher  price
if found reasonable. Meanwhile, on the 8th August, the first
defendant sent an  airgraph to  Youngman, which states inter
alia :--
    "I  got a cable from you a few days ago saying  you  had
had an offer of Rs. 6,000 for Morvern Lodge.
163
At the same time I got one from White saying value of Bunga-
low  was Rs. 10,000. So wired you- 'Won't accept  less  than
Rs.  10,000'."  On the 9th August, 1944, Youngman  wrote  to
the plaintiff as follows :-
"In  reply to your letter, dated 7th August, I  received
yesterday a cable  from Co1. MacPherson regarding your offer
of Rs. 6,000, which reads as follows :--
    'Won't   accept   less   than   rupees   ten   thousand'
MacPherson."
    The plaintiff has stated in his plaint that this  letter
of  Youngman was received by him on the 14th  August,  1944,
and  he immediately accepted the "counter-offer made by  the
first  defendant ", and confirmed it in writing in a  letter
addressed to Youngman.  In his evidence, however, the plain-
tiff  has  stated that he met Youngman on  the  11th  August
after  receiving his letter and told him personally that  he
would  pay  Rs.  10,000 for the bungalow  and  will  require
immediate  delivery.   There was also some  talk  about  the
conveyance  charges, and ultimately the plaintiff agreed  to
bear  those  charges.  Afterwards, he wrote  to  Youngman  a
letter'  on the 14th August in which after referring to  the
conversation he had with the latter he stated as follows :--
    "I hereby confirm my oral offer of ten thousand for  the
bungalow.  I shall be grateful if you will kindly  hurry  up
with  consultation   with your lawyers at  Madras  and  make
arrangements to receive the money and hand over the bungalow
as early as practicable."
    It  appears  that three days later, i.e.;  on  the  17th
August,  one  Subbayya wrote to Youngman  stating  that  "he
confirmed his offer of Rs. 10,500 made to him (Youngman) the
previous  day  for the purchase of the bungalow  ",  and  he
expected  that the latter had cabled to the first  defendant
communicating the offer as promised. It seems that  Youngman
did not communicate Subbayya's offer to the first defendant,
but sent a cable to him on the 26th August to the  following
effect :--
164
    "Offered  ten thousand Morvern Lodge  immediate  posses-
sion.   May I sell."  On the same day, White cabled  to  the
first defendant in the following terms:-
    " Hold offer for Morvern Bungalow rupees eleven thousand
cash subject immediately acceptance and occupation. Strongly
recommend acceptance."
On  the  29th August, Youngman sent an airgraph  to  the
first defendant in which he wrote as follows :---
    "Thank you for your airgraph letters of 8th August which
reached  me  on 24th instant. I cabled you  on  Saturday  an
offer  of  Rs. 10,000 for Morvern Lodge from  the  would  be
purchaser who previously had offered Rs. 6,000, but I had  a
call  from  White a day or two ago and he tells me  that  he
cabled an  offer on the same day of Rs. 11,000. I expect you
will  have  answered these and will  have  accepted  White's
offer.  If  you have decided will you please arrange  for  a
Power-of-Attorney to be prepared as soon as possible."
    In  the  meantime, the first defendant sent a  cable  to
White to the following effect:-
    " Accept rupees eleven thousand Morvern Lodge occupation
permitted  when full amount deposited my account  Mercantile
Bank Madras inform Youngman."
    Thereafter, the second defendant paid the amount of  Rs.
11,000 and occupied the bungalow.
    The  question to be decided in this case is  whether  in
view  of  the correspondence which has been  reproduced,  it
could  be held that there was a concluded contract  for  the
sale  of "Morvern Lodge" in favour of the plaintiff  on  the
14th  August, as stated by him in the plaint.  The  Judicial
Commissioner of Coorg who tried the suit held that there was
a  concluded contract, but, instead of giving to the  plain-
tiff a decree for specific performance, awarded a sum of Rs.
3,000  as  compensation to him.  Against  this  decree,  the
first  defendant alone has appealed, after obtaining a  cer-
tificate  under section 109 (c) of the Civil Procedure  Code
from  the Judicial Commissioner. The plaintiff has not  pre-
ferred any appeal.
165
    The plaintiff's case is that the cable sent by the first
defendant on the 5th August, and received by Youngman on the
8th,  to the effect that he would not accept less  than  Rs.
10,000, was a counter-offer made by him through Youngman  to
the plaintiff, and the contract  was complete as soon as  he
accepted  it.  We however find it difficult to hold  on  the
entire  facts of the case that there was any concluded  con-
tract on the 14th August, 1944, and we are supported in this
view by the well-known case of Harvey v. Facey(1), in  which
the  facts  were somewhat similar to those  of  the  present
case.   In that case, the appellants had telegraphed to  the
respondents "Will you sell us B.H.P.? Telegraph lowest  cash
price  ",  and  the respondents had  telegraphed  in  reply,
"Lowest price for B.H.P. pound 900," and then the appellants
telegraphed, "We agree to buy B.H.P. for pound 900 asked  by
you.   Please send us your title-deed in order that  we  may
get  early  possession,"  but received no  reply.  On  these
facts,  the Privy Council held that there was  no  contract,
and  Lord Norris, who delivered the judgment of  the  Board,
observed as follows :--
    "The  third  telegram  from the  appellants  treats  the
answer of L.M. Facey stating his lowest price as an uncondi-
tional  offer  to  sell to them at the  price  named.  Their
Lordships  cannot  treat  the telegram from  L.M.  Facey  as
binding him in any respect, except to the extent it does  by
its  terms, viz., the lowest price. Everything else is  left
open,  and the reply telegram from the appellants cannot  be
treated as an acceptance of an offer to sell them; it is  an
offer  that  required  to be accepted by  L.M.  Facey.   The
contract could only be completed if L.M. Facey had  accepted
the  appellant's last telegram.  It has been  contended  for
the appellants that L.M. Facey's telegram should be read  as
saying  ' yes' to the first question put in the  appellant's
telegram,  but there is nothing to support that  contention.
L.M.  Facey's telegram gives a precise answer to  a  precise
question, viz., the price.  The contract must appear by  the
telegrams, whereas the
(1) [1893] A.C. 552.
166
appellants are obliged to contend that an acceptance of  the
first  question  is to be implied. Their  Lordships  are  of
opinion that the mere statement of the lowest price at which
the  vendor would sell contains no implied contract to  sell
at that price to the persons making the inquiry."
    The conclusion at which we have arrived is  strengthened
by  certain facts which emerge from the  correspondence  be-
tween  the parties. The real question is whether  the  first
defendant  had made a counter-offer in his cable of the  5th
August  or he was merely inviting offers. The  plaintiff  in
his letter of the 14th August addressed to Youngman,  stated
that  he  confirmed his oral offer of ten thousand  for  the
bungalow,  and he did not say in so many words that  he  ac-
cepted  the ' counter-offer ' of the first defendant.  Simi-
larly, in the cable which Youngman sent to the first defend-
ant  on the 28th August, he did not state that the  latter's
offer had been accepted, but stated that he had been offered
Rs.  10,000  for the bungalow and concluded with  the  words
"May I sell ?" Neither party thus treated the first  defend-
ant's  cable  as containing a counter-offer.  On  the  other
hand,  they proceeded on the footing that the plaintiff  had
made an offer of Rs. 10,000 which was subject to  acceptance
by the first defendant.  Apparently, the first defendant was
in communication not only with Youngman but also White,  and
both  of them rightly thought that no transaction  could  be
concluded  without obtaining the first  defendant's  express
assent to it.
    Mr.  Jindra Lal, counsel for the plaintiff, who  pressed
his  points  with force and ability, contended that  by  the
26th August, 1944, Youngman had come under the influence  of
the rival bidder or at least that of White who was  support-
ing  him, and the cable to the first defendant was  deliber-
ately framed by Youngman, in such a way as to prejudice  the
plaintiff.  There  is  however nothing in  the  evidence  to
support  such  an extreme conclusion.  On  the  other  hand,
Youngman has frankly stated in his evidence that he felt  it
improper to entertain Subbayya's higher offer and did
167
not communicate it to the first defendant. This statement is
supported  by the cable of the 26th August and, if  Youngman
can be said to have had any leaning at all, it was certainly
in favour of the plaintiff. In these circumstances, it would
be difficult to hold that  Youngman had deliberately  misde-
scribed  the plaintiff's acceptance of the counter-offer  as
his  offer in the cable which he sent on the 26th August  to
the first defendant.
    It  seems  to  us that the view taken  by  the  Judicial
Commissioner is not correct, and, as there was no  concluded
contract, the decree passed by him awarding compensation  to
the plaintiff for breach of contract cannot be sustained. We
therefore  allow  the  appeal, set aside  the  judgment  and
decree  of the Judicial Commissioner and dismiss the  plain-
tiff's suit. Having regard to the circumstances of the case,
we make no order as to costs.
                                Appeal allowed.
Agent for the appellant: M.S.K. Sastri.
Agent for the respondent: Rajinder Narain.
PETITIONER:
FATMA HAJI ALl MOHAMMAD HAJIAND OTHERS
        Vs.
RESPONDENT:
THE STATE OF BOMBAY.
DATE OF JUDGMENT:
05/02/1951
BENCH:
MAHAJAN, MEHR CHAND
BENCH:
MAHAJAN, MEHR CHAND
FAZAL ALI, SAIYID
MUKHERJEA, B.K.
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR  180            1951 SCR  266
ACT:
    Bombay Land Revenue Code, 1879, s. 48--Rules under  the
Code,  r.  92--Agricultural  land used  for  other  purposes
--Collector's duty to alter assessment--Mere confirmation of
Collector's order refusing to re-assess--Whether amounts  to
direction to act otherwise--Right to re-assessment.
267
HEADNOTE:
    Rule 92 of the rules issued under the Bombay Land  Reve-
nue  Code, 1879, provided that when land assessed  for  pur-
poses  of  agriculture  only is subsequently  used  for  any
purpose  unconnected with agriculture, the  assessment  upon
the  land  so used shall unless otherwise  directed  by  the
Government  be altered under s. 48 (2) by the  Collector  in
accordance with rr. 81 to 87: Held, that as the rule imposes
an imperative duty on the Collector to alter the assessment,
the  power  which has been given to the government  to  give
directions  to the Collector not to act in  accordance  with
the imperative provisions of the rule has to be exercised in
clear  and unambiguous terms as it affects civil  rights  of
the  persons concerned and the decision that the  power  has
been exercised must be notified in the usual manner.
    Where  the  Government did not pass  any  resolution  or
issue any directions to that effect but merely confirmed  on
appeal an order of the Collector rejecting an application to
assess  nonagricultural  assessment  on  agricultural  lands
which  had been used for building purposes:  Held, that  the
confirmation of the Collector's order by the Government  did
not amount to a direction to act otherwise within the  mean-
ing  of  r. 92 and the applicant was entitled  to  have  the
assessment on the lands altered under s. 48(2) in accordance
with rr. 81 to 87 as laid down in r. 92.
JUDGMENT:
    CIVIL  APPELLATE  JURISDICTION: Appeal (Civil Appeal No.
28 of 1950) from a judgment and decree of the High Court  of
Judicature  at  Bombay  dated 19th March, 1945,  in  Appeals