Madho Prosad Sukul vs Gangaram Saraogi

P.N. Mookerjee, J.—This second appeal is by the Defendant and it arises out of a suit for eviction on the ground that the Defendant, who was the tenant in respect of the disputed premises under the Plaintiff, was liable to ejectment as his tenancy had been validly terminated by an appropriate notice of ejectment.

The suit apparently was brought under the general law, namely, the Transfer of Property Act, as at the date of its institution there was no special tenancy legislation operating in the area in which the disputed property was situate. The property is at Purulia, which was originally a part of Bihar but thereafter transferred to this State. The suit was instituted on December 6, 1959. By that Unreported judgment of Banerjee, J. in Matter No. 226 of 1962 time the disputed property had become part of West Bengal and, accordingly, the special Rent Control legislation of the Bihar State had ceased to apply. The West Bengal Premises Tenancy Act, 1956, also, which was in force in West Bengal, generally speaking had not been extended till then to Purulia and, in the circumstances, there was full justification on the part of the Plaintiff for filing the suit and claiming a decree for ejectment under the general law, namely, the Transfer of Property Act.

While, however, the suit was pending before the learned Munsif, on October 1, 1960, the West Bengal Premises Tenancy Act, 1956, was extended to Purulia. The learned Munsif decided the suit and delivered judgment on December 23, 1960. But although the above special legislation had been extended to Purulia in the meantime, as stated above, neither the lawyers nor the Court appear to have taken note of it in the trial Court. The learned Munsif decreed the Plaintiff''s suit, and against this decree an appeal was taken by the Defendant to the lower Appellate Court, which was eventually heard by the learned Subordinate Judge, Purulia, who by his judgment dated December 9, 1961, dismissed the Defendant''s appeal. Hence this second appeal by the Defendant Appellant.

In the plaint, it appears, although no special legislation was in force at the date of institution of the suit at Purulia, a plea was taken by the Plaintiff, possibly out of greater caution, of his reasonable requirement of the disputed premises for his own occupation. On this question too the learned Munsif found in favour of the Plaintiff and that finding was part of his judgment decreeing the Plaintiff''s suit.

The learned Subordinate Judge was, however, of the opinion that this particular finding of the learned Munsif might not have been quite correct and, as it appears from the judgment of the learned Subordinate Judge, he was more inclined to differ from it and set it aside.

Before the learned Subordinate Judge the principal or the material point which appears to have arisen, was whether the Defendant would be entitled to take advantage of the special legislation, the West Bengal Premises Tenancy Act, 1956, which had been extended to Purulia during the pendency of the instant suit, and whether, in view of Section 13 of the said Act and having regard to the above view of the learned Subordinate Judge on the question of the Plaintiff''s claim of reasonable requirement of the disputed premises, the decree passed by the learned Munsif in favour of the Plaintiff should be reversed.

The moot question, therefore, which has first to be considered is whether the Defendant Appellant is entitled, in the instant case, to the benefit and protection of the West Bengal Premises Tenancy Act, 1956, which had been extended to the area concerned during the pendency of the instant suit; or, in other words, whether this Act or in particular Section 13 thereof would apply to a pending proceeding.

The learned Subordinate Judge has answered this question in the negative or against the Defendant and upon that view, in spite of his adverse inclination against the Plaintiff on the question of his reasonable requirement of the disputed premises, he has dismissed the Defendant''s appeal and maintained the decree for ejectment passed by the learned Munsif.

Before us, the point has been fully argued by the learned Advocates on both sides. A large number of authorities were also cited before us in support of the respective contentions of the parties on the point. We do not, however, deem it necessary to discuss the whole gamut of judicial decisions, which were placed before us on the point, as it seems to us fairly clear that the principle on which the instant matter should be decided is well-settled. It is an accepted rule of interpretation of statutes that in the absence of anything in the statute itself, either express or implied, giving it retrospective effect or operation in the case of a statute, which affects substantive or vested right, it should be construed as prospective and should not ordinarily be applied to pending actions. The rule is different in case of procedural statutes. But, with that we are not concerned in the instant case, as obviously the right involved here or sought to be affected by the statute in question is a substantive right and not a procedural one. The right affects the landlord''s claim of recovery of possession from a tenant, whose tenancy has been duly terminated or determined under the pre-existing law or the general law of the land, namely, the Transfer of Property Act. Such a statute would ordinarily be prospective and would not apply to pending actions; or, in other words, in such matters pending actions should be governed by the law as it existed or stood at the date of their institution. This Rule however has, inter alia, one apparent exception material for our consideration, namely, that a Court of appeal or even the learned trial Judge is entitled to look into a statute which has come into force in the meantime or to take note of the altered law or the change of law, which might have intervened since the institution of the suit, for the purpose of determining the rights of the parties in cases where the new law contains in it some indication, express or implied, that the Legislature intended it to have retrospective effect in the sense of its being applicable to pending actions.

The above, indeed, is in essence no new rule or no exception to the well-established rules, as it is really based on and stands upon the principle that where the statute itself contains some indication, express or implied, that it will have retrospective effect or operation, such effect must be given to it. This test has been clearly laid down and fully discussed in the four leading English authorities on the point, the three earlier reported in Stovin v. Fairbrass (1919) 88 L.J. K.B. 1004, Hutchinson v. Jauncey (1951) 1 K.B. 574, and Jonas v. Rosenberg (1950) 2 K.B. 52, and the later decision of the House of Lords in Attorney-General v. Vernazza L.R. (1960) A.C. 965, and it does not appear to have ever been doubted. The decisions which have been cited before us point to no new approach or contrary effect and, accordingly, we do not deem it necessary to discuss any other case but we may usefully refer to Maxwell, 11th ed., pp. 212-3, and Craies, 6th ed., pp. 398-401, in support of the above view.

Judged on the above test, the instant case in our opinion would be a case where the new statute should not be applied to a pending action. 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.

In the above view we would hold that the instant suit, which was a pending suit at the date when the relevant special statute (the West Bengal Premises Tenancy Act, 1956), was extended to the area concerned, would not be affected or governed by the special legislation.

If what we have said above is correct, and we have no doubt that it is so, upon the concurrent finding of the two Courts below, the Defendant would have no case and the decree for eviction passed by the two Courts below as against the Defendant and in favour of the Plaintiff, must be affirmed.

We would, therefore, uphold the concurrent decisions of the two Courts below, decreeing the Plaintiff''s suit for eviction and dismiss this appeal.

There will be no order for costs in any Court.

A.K. Dutt, J.

I agree.