Gurdial Singh vs Animesh Chandra Roy Gupta

Chittatosh Mookerjee, J.—On July 14, 1965, the Respondent Animesh Chandra Roy Gupta instituted a suit, out of which this Second Appeal arises, against the present Appellant Gurdial Singh as Defendant in the Fourth Court of Munsif at Sealdah for a decree of khas possession of premises No. 53, Gola Mohal, Sadar Bazar, Barrackpore, district 24-Parganas and for the recovery of mesne profits till the khas possession was obtained in due course of law. The Plaintiff''s case was that the Defendant Gurdial Singh was a monthly tenant in respect of the suit premises at a rent of Rs. 55 per month according to the English calender. The present accommodation of the Plaintiff and the members of his family who were residing in holding No. 54, Gola Mohal, contiguous to the suit premises was insufficient and the Plaintiff required the suit premises for the use and occupation of himself and for the members of his family. The Plaintiff also averred that he required the premises for building and rebuilding and for making substantial additions and alterations. Thus, the Plaintiff''s case was that he was entitled to a decree under Clause (f) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act (as the said provisions stood at the relevant time). The Plaintiff, further, alleged that the Defendant''s tenancy had been terminated by a notice to quit by May 10, 1965, on the expiry of the last day of June 1965. The Plaintiff claimed that the said notice was also in compliance with the provisions of Section 13(6) of the West Bengal Premises Tenancy Act, 1956.

The Defendant contested the said suit by filing a written statement. He denied that the Plaintiff reasonably required the suit premises for, building and rebuilding and for making substantial additions and alterations thereto and for the use and occupation by himself and the members of his family. The Defendant contended that the Plaintiff''s present accommodation was sufficient and his case of reasonable requirement was not true. He also pleaded that the notice to quit was invalid, insufficient and inadequate. While the above suit was pending in the trial Court, D.N. Sinha C.J. (as he then was) and A.K. Mukherjee J. by their judgment dated July 11, 1966, in Rama Sundari Devi Vs. Indu Bhusan Bose, held that the Entry 3 in List I of the Constitution which included the control of rent, made it incompetent for the State Legislature to make law (or extending a law) relating to the regulation of house accommodation or control of rents in the cantonment areas. The Division Bench, further, held that Parliament had enacted the Cantonment (Extension of Rent Control Laws) Act, 1957, under which the Central Government might by notification extend such a State law to a Cantonment area. Accordingly, the Division Bench declared that notification No. 6350 L.R. dated March 30, 1956, whereby the State Government had extended the provisions of the West Bengal Premises Tenancy Act, 1956, to the Barrackpore Cantonment area was ultra vires.

On March 21, 1967, the learned Munsif, Fourth Court at Sealdah, decreed the said ejectment suit in favour of the Plaintiff, The learned Munsif held that in view of the decision of this Court in Rama Sundari Devi v. Indu Bhusan Bose Supra the West Bengal Premises Tenancy Act, 1956, did not apply to the Barrackpore Cantonment area within which the suit premises was situated. Accordingly, the Plaintiff having proved that the tenancy of the Defendant had been terminated by a service of a notice to quit was entitled to a decree for eviction. The learned Munsif, however, found that the Plaintiff had no reasonable requirement and that he had no imperative or immediate need for rebuilding. The Defendant being aggrieved by the said decision preferred T.A. No. 6 of 1968.

On March 16, 1968, the Central Government in exercise of the powers conferred by Section 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957 (XLVI of 1957) extended to the Cantonment of Barrackpore, the West Bengal Premises Tenancy Act, 1956 (W.B. XII of 1956), as in force on the date of the notification in the State of West Bengal, subject to the modifications mentioned in the said notification.

On September 20, 1969, the learned Subordinate Judge, Tenth Court at Alipore, dismissed the above appeal of the Defendant and affirmed the decision of the learned Munsif. The learned Subordinate Judge concurred with the findings of the learned Munsif that the Plaintiff did not reasonably require the suit premises. The learned Subordinate Judge held that the tenancy of the Defendant was terminated by a notice to quit under the Transfer of Property Act at the point of time when the provisions of the West Bengal Premises Tenancy Act, 1956, had no application to the Barrackpore Cantonment area. In the instant case, the decree for eviction of the Defendant was passed by the trial Court before the provisions of the West Bengal Premises Tenancy Act were extended to the Barrackpore Cantonment area. Hence, the Defendant did not come within the definition of ''tenant'' as given in Section 2(h) of the West Bengal Premises Tenancy Act, 1956 and he was not entitled to protection from eviction under the provisions of the said Act. Thereafter, the Defendant preferred the present Second Appeal.

Mr. P.N. Mitter, learned Advocate for the Appellant, has submitted that the lower appellate Court was wrong in holding that the present appellate was not entitled to protection from eviction under the provisions of the West Bengal Premises Tenancy Act, 1956. The Central Government by a notification u/s 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957, had extended the West Bengal Premises Tenancy Act, 1956, subject to the modifications set out in the said notification to the Cantonment of Barrackpore during the pendency of the Title Appeal preferred by the Defendant Appellant against the ejectment decree passed by the trial Court. Mr. Mitter has submitted that an appeal is in the nature of rehearing of a suit and the Court of Appeal is authorised to make such order as ought to be made according to the state of law at the time of disposal of the appeal. Mr. Mitter, further, submitted that when the West Bengal Premises Tenancy Act was extended to the Barrackpore Cantonment area the appeal was pending and therefore, there was no finality in the decree of the trial Court. According to Mr. Mitter, Section 13 of the West Bengal Premises Tenancy Act is retrospective in nature. The said section provides that no Court shall pass an ejectment decree against a tenant except on any one or more grounds set out in different clauses under Sub-section (1) of Section 13. The necessary intendment of the Legislature is to apply the said provisions not only to the suits instituted after the commencement of the said Act, but also to suits and appeals pending at the date of extension of the Act.

Mr. B.C. Dutt, learned Advocate for the Respondents, on the other hand has contended that no legislation can have retrospective effect in respect of substantive rights unless the same is expressly retrospective or by necessary intendment. The right to recover possession in a pending suit is a matter of substantive right. According to Mr. Dutt, when the West Bengal Premises Tenancy Act, 1956, was extended to the Barrackpore Cantonment area during the pendency of the appeal against the ejectment decree, the same did not affect the vested rights of the Plaintiff landlord. Mr. Dutt, further, submitted that Section 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957, delegated to the Union Government power to extend Rent Control laws to the Cantonment areas. In case of delegated legislation no question of retrospective effect arises, unless a particular statute confers upon the delegated authority such powers. Mr. Dutt submitted that in the instant case, the Central Government as a delegated authority u/s 3 mentioned the date of commencement of the West Bengal Premises Tenancy Act, 1956, subject to the modifications mentioned therein. Therefore, the appeal Court cannot give effect to the said notification u/s 3 to any earlier date. Therefore, the lower appellate Court correctly decided the appeal by the Defendant-tenant according to the law prevailing prior to the extension of the West Bengal Premises Tenancy Act, 1956, to the Barrackpore Cantonment area.

The Federal Court in AIR 1943 24 (Federal Court) , upheld the decision of a Division Bench of the Madras High Court that a right to continue a duly instituted suit was in the nature of a vested right and it could not be taken away except by a clear indication of intention to that effect. In the said case, in the year 1932, a suit was instituted in respect of the movable and immovable properties, some situated in British India and some in Burma in a Court situated in Madras Presidency. In 1937, by a Parliamentary Act Burma was separated from India. The Federal Court upheld the order of the Madras High Court that the said Court had jurisdiction to proceed with the trial of the suit even after Burma had been separated.

The notification dated March 16, 1968, u/s 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957, did not retrospectively extend the West Bengal Premises Tenancy Act, 1956, to the Barrackpore Cantonment area and the same was prospective in effect. Therefore, it is not necessary for me to consider whether the delegated authority u/s 3 can retrospectively extend a particular Rent Control legislation to any Cantonment area. The principal point in this case is whether Section 13(1) of the West Bengal Premises Tenancy Act, 1956, is retrospective and applicable to appeal against the ejectment decrees pending at the date of enforcement of the West Bengal Premises Tenancy Act, 1956, in any particular area.

It is well-settled that an appeal is in the nature of a rehearing of the case and the appellate Court has the same powers and perform same duties as may be conferred and imposed on the Court of Original Jurisdiction in respect of suits instituted therein. In other words, the powers of the appellate Court are not less than those of the Court of first instance. These powers of the appellate Court have been recognised in Sub-section (2) of Section 107, Rule 33 of Order 41 of the Code of Civil Procedure, etc.

Gwyer C.J. and Vardachariar J. in AIR 1939 74 (Federal Court) quoted the following passage from the judgment of Jessel M.R. in Quilter v. Mapleson (1882) 9 Q.B.D. 672.

On an appeal strictly so called such a judgment can only be given as ought to have been given at the original hearing; but, on a rehearing such a judgment may be given as ought to be given if the case came at that time before the Court of first instance.

Therefore, the above principle is no way in conflict with the equally well-known propositions of law that the institution of a suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit, including the appeal taken therefrom. The right of appeal is a vested right and such a right to enter the superior Court accrues to a litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of the appeal : vide the propositions laid down by S.R. Das CJ. (as he then was) in Garikapatti Veeraya Vs. N. Subbiah Choudhury, . Lord Macnaghten in Colonial Sugar Refining v. Irving (1905) A.C. 369 pointed out that

when an Act is not retrospective by express enactment or by necessary intendment, a suitor in pending action of an appeal to a superior Tribunal is not deprived of his vested right.

Thus, in the event of an appeal the case is deemed to be pending and an appellate Court, in considering the correctness of the judgment of the Court below, will confine itself to the state of the case at the time the said judgment is rendered and will not take notice of any facts which may have arisen subsequently.

Hidayatullah J. (as he then was) in Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, observed that:

It is a fixed principle of law that a suit must be tried on the original cause of action and this principle governs not only the trial of suits but also appeals. Indeed the appeal being a continuation of the suit new pleas are not considered. If circumstances change they can form the subject of some other proceedings but need not ordinarily be considered in the appeal.

Hidayatullah J. (as he then was) further observed that to that proposition there were a few exceptions. The practice of the Courts was very adequately summarized in Ram Ratan Sahu v. Mohant Sahu (1907) 6 C.L.J. 74 which had been consistently followed in India.

Sir Asutosh Mookerjee and Holmwood JJ. in Ram Ratan Sahu v. Mohant Sahu (1907) 6 C.L.J. 74 pointed out the exceptional cases in which the Court may depart from this rule in order to shorten litigation and best attain the ends of justice by preserving the rights of both parties.

Further point whether Section 13(1) of the West Bengal Premises Tenancy Act, 1956, is retrospective is no longer res integra. In Nibaran Chandra Chaudhury v. Abinash Chandra Dutta Poddar and Ors. (1955) 60 C.W.N. 308 (311) P.N. Mookerjee J. held that the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, was extended to Cooch Behar after the institution of the ejectment suit in question and therefore, the Defendant was not entitled to protection under the said Rent Control law. Again, P.N. Mookerjee and A.K. Dutt JJ. in Madho Prosad Sukul v. Gangaram Saraogi ILR (1968) II Cal. 183 more elaborately discussed the question whether a Defendant was entitled to take benefit and protection of the West Bengal Premises Tenancy Act, 1956, which had been extended to Purulia during the pendency of the ejectment suit against him, or, in other words, whether the said Act or any in particular Section 13 thereof would apply to a pending proceeding. P.N. Mookerjee J. in para. 11 of his judgment held:

The clear indication in Section 13, of which Sub-section (6) is also a part, is to point out and emphasise that the decree or order for eviction mentioned in Sub-section (1) of Section 13 obviously refers to a decree or order to be passed in a suit which is otherwise governed by the Act. A suit, which is governed by this Act, must be a suit contemplated in Section 13(6) and must, accordingly, comply with the requirements of the said sub-section. To a pending action, however, it will be impossible to apply the said sub-section. Vide in this connection, V.R. Verma Vs. Mohan Kumar Mukherjee and Another, , where a similar view of Section 13(6) was taken. Indeed, if this statute is to be given a retrospective operation in the sense that it would apply to pending actions, it would really impose upon the landlord an impossible and absurd condition of complying with a provision, which was not in existence at the date of the suit, but compliance with which would be necessary to enable him to have a decree. We do not think that the Legislature ever intended or contemplated such a consequence.

The above two decisions are binding upon me and accordingly, I respectively follow the same and hold that Section 13(1) is not retrospective. I may add that a reference to several other provisions of the West Bengal Premises Tenancy Act, 1956, would also indicate that the West Bengal Legislature did not intend to give retrospective effect to Section 13(1) of the West Bengal Premises Tenancy Act, 1956, In case a suit was instituted for ejectment from a premises situated in an area where the West Bengal Premises Tenancy Act, 1956, had not been then extended, the Defendant tenant after entering appearance in the said suit would be under no obligation to pay or deposit in terms of Sub-section (1) of Section 17 by the said Act. There could be also no question of raising a dispute under Sub-section (2) or making any prayer for extending the time or for granting instalments for payment of arrear rent. If, subsequently, the West Bengal Premises Tenancy Act, 1956, is extended to the said area and while the said ejectment suit is pending, it would not be possible to apply to the said-pending case either the provisions of Sub-section (3) or Sub-section (4) of Section 17.

In this connection I may also refer to the judgment of P.B. Chakrabartti C.J. in T.S.R. Sarma v. Nagendra Bala Debi Choudhurani (1952) 57 C.W.N. 1 (F.B.) delivering the majority decision pointed out that suits for ejectment were brought under the Transfer of Property Act. Therefore, the repeal of Rent Act of 1948 did not affect the right of the suit pending at the date of such repeal. The full Bench in T.S.R. Sarma v. Nagendra Bala Debi Choudhurani Supra held that Section 14(4) of the 1950 Act did not apply to suits for ejectment pending at the commencement of the 1950 Act.

A Division Bench of Madhya Pradesh High Court in Gokuldas Pagaria Vs. Parmanand Chaurasia, , held that Section 12(1) of the Madhya Pradesh Accommodation Control Act (VIII of 1961) Madhya Pradesh Act VIII of 1961 is the (Amendment) Act and not Madhya Pradesh Accommodation Act VIII of 1961 as stated in the said judgment. It would be Madhya Pradesh Accommodation Act XXVIII of 1955 will not be applicable to a suit pending at the date of extension of the said Rent Control law to Jabbalpur Cantonment area by a notification u/s 3 of the Cantonments (Extension of Rent Control t Laws) Act, 1957. The Division Bench overruled a contrary decision of Tare J. and upon construction of Section 12(1) of the Madhya Pradesh Accommodation Control Act, 1961, held that the said provision was prospective and did not affect the right to continue a pending suit which was a vested right and therefore, the Plaintiff landlord was entitled to continue the suit under the Transfer of Property Act, 1882.

For the above reasons, I hold that the West Bengal Premises Tenancy Act, 1956, was not applicable to the present case which was pending in appeal at the date of extension of the said Act to the Barrackpore Cantonment area. Right to pursue the remedy of the landlord was a matter of substantive right. Section 13 of the West Bengal Premises Tenancy Act abridged the said right by providing that no decree for ejectment against a tenant governed by the said Act would be passed except on any one or more clauses in Sub-section (1) of Section 13. The West Bengal Premises Tenancy Act does not contain any express or implied provision that the said section would apply to suits for ejectment pending at the date of commencement of the said Act.

The decisions relied upon by Mr. Mitter, learned Advocate for the Appellant, do not really assist his client''s case. In these cases, the relevant provisions were interpreted as retrospective and hence, applicable to pending actions. In AIR 1936 49 (Privy Council) Sir George Rankin pointed out that Section 26(0) of the Bengal Tenancy Act was retrospective in operation and the said provisions applied to transfers made both before and after the date of the commencement of the Bihar Tenancy (Amendment) Act, 1934. Similarly, the Federal Court in Shyamakant Lal v. Rambhajan Singh and Ors. Supra found that Section 16of the Bihar Money Lenders Act, 1938, was retrospective. Order 41, Rule 33 of the Code of Civil Procedure, however, did not apply to an appeal in the Federal Court. The Federal Court by majority, however, held that the Court under Sections 205 and 209(1) of the Government of India Act, 1935, had ample jurisdiction to remit the case with a declaration.

The decision of the Supreme Court in Shah Bhojraj Kuverji Oil Mills and Ginning Factory Vs. Subbash Chandra Yograj Sinha, is also distinguishable. Section 12(1) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947, is not pari materia with Section 13(1) of the West Bengal Premises Tenancy Act, 1956. The Supreme Court in Shah Bhojraj Kuverji Oil Mills and Ginning Factory Vs. Subbash Chandra Yograj Sinha, pointed out that Section 12(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act enacted a rule of decision and it said that a landlord was not entitled to possession if the tenant paid or showed his readiness and willingness to pay standard rent and to observe the other conditions of the tenancy. The Supreme Court, further, held that a statutory tenant was within the rule enacted by Section 12(1) and was entitled to its protection. The Supreme Court in the said decision distinguished the earlier Supreme Court decision in Chandrasingh Manibhai and Others Vs. Surjit Lal Ladhamal Chhabda and Others, which laid down that Sub-sections (2) and (3) of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, were prospective and did not apply to pending cases. Hidayatullah C.J. (as he then was) in Shah Bhojraj Kuverji Oil Mills and Ginning Factory Vs. Subbash Chandra Yograj Sinha, held that Section 12(1) was prospective in some parts and retrospective in other parts. Section 12(1) contained a clear language that the sub-section would apply equally to suits pending when pt. II came into force and to those to be filed subsequently. The Supreme Court in Shah Bhojraj Kuverji Oil Mills and Ginning Factory Vs. Subbash Chandra Yograj Sinha, did not consider the scope of Section 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, set out the grounds of which a landlord subject to Section 15 shall be entitled to recover possession of any premises.

The decision of the Supreme Court in Mohanlal Chunilal Kothari Vs. Tribhovan Haribhai Tamboli, again considered by the Supreme Court in Sidram Narsappa Kamble Vs. Sholapur Borough Municipality Another, . Wanchoo J. (as he then was) in S.N. Kamble v. The Sholapur Borough Municipality and Anr. pointed out that Section 88(1)(a) of the Bombay Tenancy and Agricultural Lands Act, 1948, was an express provision which took away the interest of the-protected tenants under the Bombay Tenancy Act, 1939. Therefore, the lessee from the Municipality, who claimed to have acquired interest of protected tenant under the Bombay Tenancy Act, could not claim the benefit of Section 31 nor could he say that his interest as protected tenant was saved by Section 89(2)(b) of the said Act. It was further pointed out that observations in Mohanlal Chunilal Kothari Vs. Tribhovan Haribhai Tamboli, that Section 88(1)(b) did not affect the rights of the Bombay Tenancy Act, 1939, was not correct for there could be no new protected tenants under the 1948 Act to whom even Section 88(1)(d) could have applied. If a notification u/s 88(1)(d) could be retrospective upto the date of 1948 Act, there could be no reason on the language of that section to hold that it was retrospective only upto 1948 and would not affect the rights acquired under the 1939 Act. The Supreme Court further pointed out the distinction drawn in Mohanlal Chunilal Kothari Vs. Tribhovan Haribhai Tamboli, that Clause (a), (b) and (c) of Section 81 applied to things as they were at the date of the enactment whereas Clause (d) was with respect to future, did not appear to be correct.

For the foregoing reasons, I hold that Section 13 of the West Bengal Premises Tenancy Act was not applicable in respect of the appeal preferred by the Defendant tenant against the eviction decree passed by the learned Munsif, Sealdah. This Second Appeal, accordingly, fails.

I, therefore, dismiss the Second Appeal.

There will be no order as to costs.

Leave under Clause 15 of the Letters Patent is prayed for and refused.