Laxman Rao vs Rukmani Bai

Siadatali Khan, J.—This is a revision petition in a civil suit. The learned third Judge, City Civil Court, by order dated 30th August 1950, held that issue in respect of eviction is hereby decided in favour of the plaintiff; and that she is entitled to have the defendant (revision petitioner) evicted. The revision is against this order. I have heard the arguments of the learned advocates of the parties and record my opinion below:

It is admitted that the plaintiff''s suit was filed on 31st Amardad 1355 F; and that the second amendment to paragraph 8 of the Hyderabad Rent Control Order, 1353 F, was effected by Notification No. 16 dated 19th Farwardhi 1357F published in Jarida Volume No. 1, page 1152 dated 1st Ardebehist 1357 F. The learned advocate for the revision petitioner argued that the second amendment to sub-para. (1) of para. 8 of the Rent Control Order runs as follows:

No tenant of a house shall be evicted from the house in execution of a decree or otherwise whether before the enforcement of this order or after it except under an order mentioned in this paragraph;

that it is clear from this para. 8 (1) that retrospective effect is given to the provision contained in it by express formulation and intendment and it is provided that whether the eviction be in execution of a decree or otherwise it cannot be effected except by an order contained in the paragraph. A perusal of the para, will show that the order referred to is the order of the Controller. Thus it is clear that the eviction of a tenant from a house can only take place by and through an order of the. Rent Controller and civil Court has no power to order eviction. The learned advocate for the revision petitioner concluded by stating that in this context the order under revision becomes obviously wrong; for, it is based on the assumption that as the amendment came much later than the filing of this suit, this suit is not affected by the amendment, as all amendments take effect from the date of the amendment and have no retrospective effect; that this assumption is incorrect inasmuch as the amendment itself provides for retrospective effect. In reply the learned advocate for the opposite party argued by reference to the cases cited in the margin that it has been held in all these cases that no statute has any retrospective effect and that it comes into force only from the date of the enforcement; that amendments in Statutes made during the pendency of cases have no effect upon the pending cases and that in any case all the cases cited in the margin will show that the Civil Courts are not prohibited from passing a decree of eviction, even though the decree may not be enforced except through the Controller.

I have carefully considered the above arguments of the learned advocates of the parties and I am afraid I cannot agree with the arguments of the learned advocate for the opposite party. The cases cited by him do not support him. No doubt, it is held in them that no amendment has any retrospective effect but it is also laid down that it was so unless a retrospective effect is intended by express formulation or by necessary implication. I have already quoted para. 8 (1) above after rendering it into English, and it is clear from its perusal that retrospective effect is provided by express'' formulation. It is also to be noted that all the four cases cited by him were decided before the second amendment. ''35 Deccan L R 700'' was decided on 21st Isfandar 1354 F; ''36 Deccan L R 393'' was decided on 8th Aban 1354 F; ''37 Deccan L R 121 was decided on 15th Azur 1356 F and ''38 Deccan L R 389'' was decided on 10th Bahman 1357 F; that is full two months before the second amendment to the Rent Control Order of 1353 F. It is to be noted further that in ''38 Deccan L R 389'', it was held that amendments during pendency of the suit are usually given effect to and this case goes against the contention of the learned advocate for the opposite party that this case also decided that retrospective effect is not usually given to amendments. On the other hand, it was held in ''38 Deccan L R 389'', by reference to an unreported case which is, however, since then published in ''38 Deccan L R 103'', that if an amendment is made during the pendency of a suit it is usually applied. This case of ''38 Deccan L R 103'' was the subject of comment in the case of ''Mure-e-Bin Salem v. Madura Pershad'', 40 Deccan L R 163. In that case it has been explained that the intention of ''38 Deccan L R 103'' is that an amendment during the pendency of a suit or appeal can only have effect if retrospective effect is intended by the Statute making the amendment. Thus it is clear that as the retrospective effect is clearly intended in so many express words in para. 8 (1) of the Rent Control Order there is no escape from giving it the intended effect In the result no order of eviction can be passed by a civil Court and the landlord had in any case after the amendment to go to the Controller. Having regard to the facts of this case it seems hard upon the plaintiff who is a woman; for she went to the Controller and got an order of the Controller in her favour on 15th Khurdad 1355 F and now she has to go back to the Controller. This hardship has been caused because under para. 8 of the Rent Control Order of 1353 F the permission only of the Rent Controller was necessary, and the intention of the Rent Control Order was not to make the provisions of the Transfer of Property Act infructuous wholly; but as stated above, after the second amendment permission of the Rent Controller has been dispensed with and it has been provided in so many express words that no tenant of a house shall be evicted from the house whether in execution of a decree or otherwise except under an order under para. 8; and para. 8 contains only the order of the Controller and it provides further in para. 8 (6) that the order of the Controller will be carried out by a Civil Court as if it is the order of a Civil Court itself. On reading para. 8 (1) more than once I feel no doubt whatsoever that retrospective effect is intended; for it is provided that no tenant of a house shall be evicted whether in execution of a decree or otherwise and whether before the enforcement of this order or after it. The words "whether before the enforcement of this order or after it" clearly mean that no eviction can be ordered even in respect of cases, which may be pending at the time of the enforcement of the Rent Control Order. They may also be taken to mean whether the decree of eviction may have been passed before the enforcement of the order or after it. In other cases, whether we look to an order of eviction or to a decree of eviction the words "whether before enforcement of this order or after it" mean very clearly that from the time of enforcement of the amendment, no eviction can take place except under an order mentioned in para. 8 and. as I have already stated above, paragraph 8 contains only the order of the Controller and contains order of no other authority. I may also mention that though the order of the Controller in favour of the plaintiff was passed on 15th Khurdad 1355 Fasli, that is, a month and a half after the second amendment to the Rent Control Order, 1353 Fasli on 1st Ardibehisht 1357 Fasli, still the Controller does not appear to have noticed that he himself was competent to pass an order of eviction; and it appears that he was still under the impression that he can only award sanction to the plaintiff to take eviction proceedings in a Civil Court. It is because of this misapprehension that the Controller only gave permission to the plaintiff to file a suit of eviction against the defendant in the Civil Court and the plaintiff acting upon it has filed a suit under which this revision had come before me. I may also mention that in '' Kishori Lal Potdar Vs. Debi Prasad Kejriwal and Another, and in Mahmood H.Y. Vs. The Kerala Corporation Ltd., as also in ''Parthasarathy v. Krishnamoorthy'', AIR 1949 Mad 387, all cases under Rent Control Orders, it has been held that the relevant time to look is not the date of the suit but the time when the decree has to be passed.

In the result, though I am not very much pleased with it, this revision is allowed, the order under revision set aside and the opposite party (Plaintiff) is left to get an order from the Controller himself. The costs of this revision will be the costs in the suit.