Jagadish Chandra Das vs Birendra Nath Basil

Guha, J.—This appeal by the Defendant arises out of a suit instituted by the Plaintiff for ejectment on the ground of bona fide requirement of the house. The suit was instituted on January 27, 1949, when the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, hereinafter described as the 1948 Act, was in operation. The suit was decreed by the trial court on September 19, 1949. Against that decision an appeal was preferred by the Defendant. During the pendency of the appeal, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, hereinafter described as the 1960 Act, came into operation. A preliminary objection was raised before the lower appellate court on behalf of the Defendant Appellant to the effect that the suit, which was instituted by the Plaintiff for eviction of the Defendant on the ground of his bona fide requirement, should be sent on remand for determination of the dispute according to the provisions of Section 12(1)(h) of the 1950 Act. This objection was overruled by the lower appellate court, which came to the conclusion that the case had got to be decided according to the provisions of the repealed statute, namely, the 1948 Act. Ultimately, the appeal was dismissed and the decision of the trial court was affirmed.

The main point that has been canvassed before me on behalf of the Defendant Appellant is whether the present suit is to be decided according to the provisions of the 1948 Act or those of the 1950 Act. It has been argued before me on behalf of the Appellant that the case should be decided according to the provisions of the 1950 Act, inasmuch as that Act was in operation during the pendency of the case in the appellate court.

On behalf of the Plaintiff Respondent, however, it is contended that the lower courts were right in holding that the case was to be governed according to the provisions of the 1948 Act. Various authorities have been cited before me on behalf of the respective parties. It is unnecessary for me, however, to refer to all of them. The point in controversy can, in my opinion, be settled by reference to certain basic principles, which may be formulated; thus:

(i) The ordinary rule of law is that a suit is to be tried by the law as it stood on the date of the institution of the suit unless some new law applies expressly or by necessary intendment. Vide the case of Monmohan Moitra v. Govinda Das Chowdhury (1950) 55 C.W.N. 6.

(ii) Where an existing right is likely to be taken away by the operation of an Act, unless there is something which compels the court to give the Act a retrospective effect, a court will not give the Act that effect. Vide the case of S.B. Trading Company, Ltd. v. Satyendra Ch. Sen (1950) 54 C.W.N. 756.

(iii) A statute is not to be construed to have a greater retrospective operation than its language renders necessary. Vide 31 Halsbury, 516.

(iv) The repeal of the 1948 Act has not the effect of divesting the landlord of any right that accrued to him under the repealed Act. Vide the case of S.B. Trading Company, Ltd. v. Satyendra Ch. Sen (supra).

So far as the propositions formulated above are concerned, I do not think that there can be any serious doubt that they lay down the law correctly.

Now, let us apply those propositions to the facts of the present case.

Under the 1948 Act, the landlord had the right or privilege of evicting a tenant where the premises were bona fide required by him for his own occupation. It may be, as pointed out in the case of Jyotindra Nath Mitra v. Sourindra Nath Dutta (1950) 55 C.W.N. 123 that the 1948 Act did not empower any person to institute a suit for ejectment and that the right to sue for ejectment was given by the Transfer of Property Act, but the fact remains that, under the 1948 Act, the landlord had some sort of right, at least the right of his ejectment suit not being defeated if he could satisfy the court about his bona fide requirement. I cannot, therefore, assent to the contention of the Appellant to the effect that the only right given to the landlord under the 1948 Act was ipso facto determination of the tenancy and standardization of rent, nor can I agree with the Appellant that, so far as ejectment is concerned, the landlord had no right under the 1948 Act, the tenant only having been given certain rights under that Act. I hold, on the contrary, that the landlord had certain existing rights under the 1948 Act even as regards ejectment.

The next question is whether such rights of the landlord were taken away by operation of the 1950 Act. The relevant provision of that Act is contained in Section 12. As regards this aspect of the case, I am in entire agreement with the views of his Lordship. P.B. Mukharji J. in the case of Ramesh Chandra Bhattacherjee v. Nagendra N. Mullick (1850) 85 C.L.J. 324 to the effect that

Section 12 of the 1950 Act is not retrospective in operation and applies only to a pending suit where a decree for ejectment could be made on the ground of default and that Section 11 of the Kent Act of 1948 is the law that is to be applied to pending suits.

Section 12(1)(h) says nothing about retrospective effect. Where retrospective operation is intended, the 1950 Act says so clearly enough, e.g., Sections 11(3) and 18(5). The intention of the 1950 Act might have been to give some relief to the tenants, but if it is intended to give that relief retrospectively, the legislature must say so in clear and certain terms. Construing Section 12 of the 1950 Act as it stands, I do not see anything in it which indicates that it has got any retrospective operation as to affect existing substantive rights. It is clear enough that Section 12 of 1950 Act does not deal with procedure but with substantive rights and where a right in existence is touched, unless there is express provision or necessary intendment, it cannot have retrospective operation. It is unnecessary for me to deal with this aspect of the case at greater length as I have observed already that I am in agreement with the views of Mukharji J. on the point. In this view of the matter, I hold that the case has been decided from the correct standpoint by the lower appellate court and I do not see any reason, therefore, to interfere with the decision of that court.

The appeal must stand dismissed with costs.

Leave to appeal under Clause 15 of the Letters Patent has been 2d for and is refused.

The tenant Defendant is granted time till April 1, 1951, for (sic) the premises. On his behalf an undertaking is given the will vacate the premises by that time. On behalf of the (sic) a further undertaking has been given that he will continue deposit the rent with the Rent Controller till he vacates the (sic) on April 1, 1951.