KESHAVLAL JETHALAL SHAH versus MOHANLAL BHAGWANDAS & ANR.

KESHAVLAL JETHALAL SHAH

MOHANLAL BHAGW ANDAS & ANR.

April 2, 1968

[M. HmAYATULLAH, C.J., J. c. SHAH, s. M. Soou, R. S. BACHAWAT, V. RAMASWAMI, G. K. MITTER, C. A. VAIDIAL!NGAM AND K. S. HEGDE, JJ.)

Bonibay Rents, Hotel and Lodging House Rates Control Act 57 of 1947, s. 29(1) a11d (2)-amended by Gujarat Act 18 of 1965-whether anumded s. 29(2) applied to case where decision of appellate Court given before the ammded section came into fo~r if High Court could o,,/y exercise power under s. 115 C.P.C. in such case.

In suit filed by the respondent in July 1958 for decree in cject-ment, arrears of rent and other dues against the appellant in respect of certain premises in Ahmcdabad. the trial court dismissed the claim for ejectment and passed decree for arrears. of rent and pennitted increases. Jn appeal .under s. 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947 the decree was eonfirmed on February 25, 1963. Bv s. 29(2) of that Act, as it then stood, no appeal lay against any decision in appeal under sub .. ection ( 1) from the order of the trial court. The respondent therefore moved the High Court by petition under s. 115 CPC. While this petition was pending Bombay Act 57 of 1947 was amended by Gujarat Act 18 of 1965 and it was provided in the amended s. 29(2) that while no appeal would lie against any decision in appeal under sul><;eetion ( 1). the ffigh Court may, .for the purpose of satisfying itself that decision in appeal was according to Jaw, call for the case and pass such order os it thinks fit. On the assumption that the amended Act applied to all petitions pending before it, the High Court. after detailed examination of the case, reversed the order of the appel-late court and decreed the respondent's suit.

In appeal by special leave to this Court, it was contended, i11ter aJia. by the appellant that the order of the appellate court which had acquired finality, subject to the exercise of the limited jurisdiction by the ffigh Court under s. 115 C.P.C. could not. be set aside in exercise of the juris-diction under the amended s. 29(2) in t.he abs·ence of provision in the Amending Act making the an1endmcnt retrospective.

HELD : The High Court exercised the jurisdiction invested by Act 18 of 1965 in respect of judgment which had become final Jong time before that Act. The appeal must therefore be allowed, the order passed by the High Court set aside and the proceedings remande<l to the High Court to deal v."ith and dispo~ of the revision application on the footing that it wns governed by s. 115 C.P.C. under which it was purported to have been filed. [630 G].

When the revision application v:as entertained under s. 115 of th~ Code of Civil Procedure, the High Court assumed to itself limited jurisdiction conferred by that ~ection, anJ. in the absence of any express provision made in the Amending Act, the jurisdiction conferred by that seetion eould not be extended. r629 H-630 BJ.

There is nothing in the language of s. 29(2) as amended, which may indicate that it was intenccd to be retros~cctive in operation. [630 DJ.

(1968) 3 S.C.R.

Indira Sohan Lal \', Custodian of Evacuee Property, Delhi [1955) 2 S.C.R. 1117 and Moti Rw11 v. Smaj Bhan [1960] 2 S.C.R. 896; distin-RUisbed.

Delhi [1955)

Vora Abbasbhai Alimahomed v. Haji Gulamnabi Haii Safibhai, (1964] 5 S.C.R. 157; Colonial Sugc.r Refi11ing Company Ltd, v. Irving, [1905] A.C. 369; Garikapatti Veerava v. N. Subbiah Choudhury [1957] S.C.R. 488; Nana Bin Aha v. Sheku Bin Andu, I.L.R. 32 Bom. 337 and Dafedar Niranjan Singh & Anr. v. Custodian, Evacuee Property (Punjab) & Anr. [1962] I S.C.R. 214; referred to.

In conferring upon the High Court wider jurisdiction for the pur-pose of determining whether the decision of the appellate court was acoording to law, the Legislature did not attempt to legislate in the matter of procedure. It expressly sought to confer upon the High Court power to reopen questions which till then were to be deemed finally decided. [630 C].

Section 29(2) as amended in terms confers jurisdiction upon the High Court to call for the record of case for the purpose of satisfying itself that. the decision in appeal was according to law, which the High Court did not possess before the . date of the Amending Act. It could not be said that tho amending clause only sought to explain any pre-existing legislation which was ambiguous or defective. [630 D-EJ.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1271 of 1967.

Appeal by special leave from the judgment and decree dated March 2, 3, 1967 of the Gujarat High Coun in Civil Revision Application No. 1010 of 1963.

B. C. Misrn, R. K. Mathur and M. V. Goswami, for the appellant.

S. K. Zarer and K. L. Hat/ti, for the respondents.

Order of Reference

Shah, J. This appeal raises the question whether revision petition filed in the High Court under s. 115,-Civil Procedure Code, from an order passed by an appellate court under s. 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 may after the amendment of s. 29(2) by the Bombay Rents, Hotel and Lodging House Rates Co~trol (Gujarat Amend-ment) Act, 1965 be tried in accordance with the amended Act. The High Court assumed that proceeding pendinz before it at the date on which the amending Act came into force had to be dealt with and decided in accordance with the provisions of sub-sec. (2) of s. 29' as amended.

There is no dispute that s. 29 (2) as Jmended has not express-ly been given retrospective operation. In Colonial _sugar Refining Co. Ltd. v. Irving('), the Judicial Committee held that "while provisions of statute dealing merely with matters of procedure

may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch right in existence at the passing of th_e statute are not to be applied retrospectively in the absence of express enactment or necessary intendment". The Judicial Committee further observed that "provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were Jina!, are provisions which touch existing rights." The same principle has been affirmed by the Judicial Committee in later decision in Delhi Cloth and General Mills v. Income-tax Commissioner, Delhi(').

In Indira Sohan Lal v. Custodian of Evacuee Property, Delhi('), one of the points decided by this Court in dealing with case under the Evacuee (Administration of Property) Act, 1947, as amended in 1948, was that even 'if at the date when an applica-tion was made for confirmation of transaction of exchange by evacuee, the order of the Custodian was to be deemed final, if by an amending Act passed before the order was made, the order was subject to revision by. the Custodian General, the order of the Custodian was denuded of its finality_. In Dafedar Niranjan Singh and Another v. Custodian Evacuee Property (Pb.) and Anr.([3 ]) this Court held that where an order of the Custodian had become final under the Patiala Evacuee (Administration of Property) Ordinance, its finality could not be affected retrospectively under s. 58(3) of the Administration of Evacuee Property Act, 1950 which replaced. the Ordinance. The Court distinguished the observations made in Indira Sohan Lal's case('). Another judg-ment to which our attention was invited is Moti Ram v. Sura; Bhan(') in which this Court observed that according to the deci-sion in Indira Sohanlal's case(') an appellate decision under s. SB of the East Punjab Evacuees' (Administration of Property) Act. 194 7 acquires finality after the order in question is inade, and "even if there be in law any such right at all it can in no sense be vested or accrued right'', and therefore notwithsta00in~ the dec-lared finality of the judgment of the Controller under th~ Evacuee Property Urban Rent Restriction Act, 1947, when the petition for ejectme11t was filed, the Act having been amended, the High Court invested with revisional jurisdiction by s. 15 ( 5) was com-petent to revise the order of the Controller. This Court observed that the finality of the order of the Controller atfached thereto only when the order was made and therefore if before the date on which the order was made, by amendment of the Act, the order ceased to be final, revfsion application to the High Court was competent.

(I) (1927)L.R. 541.A.421.

It is true that in the present case the order of the City Civil Court was made before the amending Act was enacted. Under tho Rent Act. before it was amended, no further appeal lay from the decision of the Appellate Court, but the jurisdiction of the High Court under s. 115 Code of Civil Procedure was not on tilat account excluded. By the amended Act the High Court is expr~ssly invested with revisional jurisdiction, which is not subject to the restrictions prescribed by s. 115 of the Code of Civil Procedure. The result is that the revision petition when originally filed was triable under s. 115-Civil Procedure Code; it has been tried by the High Court iinder the amen~ s. 29(2) of the Rents, Rates Control Act.

Indira Sohanlal's case(') has made departure from what was apparently settled rule. The question in this case is whether- the rule in Colonial Sugar Refining Company's case(') Will apply, or the exception engrafted upon the rule by the judgment in Indira Sohanlars case(') will apply. We direct that this case be pl:i.ced before larger Bench. It will be open to the parties to argue such other points as arise out of the order of the High Court, but subject to the restridions imposed by the order granting rul~.

The Judgment of the Court was delivered by

Shah J. The respondents sued the appellant for decree in ejectment in respect of shop Municipal Census No. 1754 at Ahmedabad and for rent in arrears and additional taxes. The trial court dismissed the claim for ejectment and passed d.xree for arrears of rent and permitted increases. In appeal under s. 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947, the decree was confinned on February 25, 1963. By s. 29(2) of that Act, as it then stood, no appeal lay against any decision in appeal under sub-s. ( 1) from the order of the Court of First Instance. The respondent accordingly mov·· ed the High Court of Gujarat by petition under s. 115 of the Code of Civil Procedure. When this petition· was pending in the High Court Bombay Act 57 of 1947 was amended by Gujarat Act 18 of 1965, and sub-s. (2) of s. 29 was replaced by the following sub-section :

''No further appeal shall lie against any decision in appeal under sub-sec. ( 1), but the High Court may for the purpose of satisfying itself that any such decision in appeal was according to law call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit."

On the assumption that by ~~ amende~ Act the High Court '!as empowered to decide all petitions pending on the .date on which (I) [t955J 2 s.c.R. 1111. (2) [1905] A.C. 369.

the amended section came into operation, as if the amended section applied thereto, the High Court entered upon detailed investi-gation of the questions raised by the respondent in the petition-( I) whether the tenant proved that he was ready and willing to pay the stlllldard rent and permitted increase$ within the meaning of s. 12(1) of the Act; (2) whether the tenant was in arrears of standard rent and permitted increases and the amount of tax for more than six months, and therefore the case fell within the pur-view of s. 12(3)(a) and not under s. 12(3)(b) of the Act; and (3) whether in any event the tenant having failed to observe the conditions of the tenancy was disentitled to the protection either, under s. 12(1) ors. 12(3)(b) of the Act, and reversed the order of the appellate court and decreed the respondent's suit. With special leave, the appellant has appealed to this Court.

This Court in Vora Abbasbhai Alimohomed "· Haji Gulumr.ubi Haii Safibhai(') held that in petition under s. 115 of the Code of Civil Procedure from an order made by the appellate court under s. 29 of Bombay Act 57 of 1947, the Higb Court had no power to set aside the order merely because if was of opinion that the judgment was assailable on the ground of error of fact or even of Jaw: the High Court may exercise its power under that section only if the appellate court had acted without jurisdiction or had failed to exercise its jurisdiction or had acted with material illega-lity or irregularity in the exercise of its jurisdiction. Thereafter the Gujarat Legislature amended s. 29(2) by Act 18 of 1965 in the manner set out, so as to confer upon the High Court juris-diction wider than the jurisdiction exercisable under s. 115 of the Code of Civil Procedure.

Counsel for the appellant contended that in entering upon an enquiry into the questions raised by the respoµdent, the High Court exercised jurisdiction which it did not possess. Counsel contended that the right to appeal-and which expression includes the right to move superior court in exercise of the revisional jurisdiction-attaches to litigation when it commences and it is not affected by any subsequent amendment unless an express pro-vision is made giving retrospective operation to the amendment and tliat the right to appeal which originally attached to the litigation will continue to govern it till it is finally decided. Counsel relied in support of that contention upon the decisions in Colonial S11gar Refining Company Ltd. v. Irving('); Garikapatti Veeraya v. N. S11bbiah Choudhur;v([8]); and Nana Bin Aha v. Sheku Bin Andu(').In the alternative counsel contended that the order of the ap-H pellate court which had acquired finality, subject to tile exercise of the limited jurisdiction by the High Court under s. 11 S of the (1) [1964] 5 S.C.R. 157. (2) 1190~] A.C. 369. (3) 11957] S.C.R. 488. (4) 1.l.R. 32 Born. )37

Code of Civil Procedure could not, in the absence of provision in the Amending Act making the amendment expre:;sly or by neces-sary implication retrospective, be set aside in exercise of the juris-diction conferred upon the High Court bys. 29(2) of the Amend-ing Act enacted after the date on which the judgment of the appel-late court was delivered. We do not think it necessary to express any opinion on the first question, because, in our judgment, on the second point raised by counsel, the appeal must succeed.

The suit out of which this appeal arises was file4 by the respon-~ dent on July 22, 1958; it was decided on October 28, 1961; the appellate court decided the appeal on February 25, 1963 and the Amending Act 18 of 1965 came into effect on ;rune 17, 1965. The High Court exercised the jurisdiction 'investe4 by Act 18 of 1965 in respect of judgment which had become final long time before that Act. It is true that this Court in Indira Sohanlal v. Custodian of Evacuee Property, Delhi & Others(') distinguished the judgment of the Judicial Committee in the Colonial Sugar Refi11ing Co. Ltd.'s case([2 ]) and observed at p. 1133:

". . . . . . it appears to be clear that while right of appeal in respect of pending action may conceivably be treated as substantive right vesting in the litigant on the commencement of the action-though we do not so decide-no such vested right to obtain determina-tion with the attnb11tc of finality can be predicated in favour of litigant on the institution of the action. By the very terms of section 5-B of East Punjab Act XIV of 1947, finality attaches to it on ¢he making of the order. Even if there be; in law, any such right at all as the right to determination with the attribute of finality, it can in no sense be vested or accrued right. lt does not accrue until the determination is in fact made, when alone the right to finality becomes an existing right as in ...... "

Jn J11dira SohMlal's case('), the Court was dealing with case in which by amendment of statute, the finality which would but for the amendment have attached was taken away before the order was made. This Court in Dafedar Niranjan Singh and Another '!. C!!Stodian Evacuee Property (Pu11jab) and Another(') distin-guished Indira Sohaniafs case(') and held that an order which had become final under provision of the law could not be affected retrospectively under an Amending Act so as to deprive the order of its finality acquired under the original provisiqn. In Dafedar Niranjan Singh's case(') an order releasing the property in dispute was passed by the Custooian of Evacuee Property under Patiala Ordinance No. IX of 2004 Samvat. No appeal was filed against

(2) [ ! 905] A.C. 369.

(1) [!955]2S.C.R.1117.

(ll [1962] l S. C.R. 214.

the order of the Custodian and it became final on that account. The order was however set aside by the Custodian in exercise of jurisdiction under s. 58 ( 3) of the Administration of Evacuee Pro-perty Act 31 of 1950. This Court held that since the order had become final in exercise of the jurisdiction subseq11ently conferred. in the absence of any positive indication giving s. 58(3) retrospec-B tive operation, the finality of the previous order could not be taken a\vay;

Counsel for the respondent relied upon judgment of this Court in Moti Ram v. Suraj Bhan and Others(') in which follow-ing llldira Sohan/al's case(') it was held that the High Court could in exercise of jurisdiction under an Amending Act enacted after the litigation was commenced, set aside an order which, according 10 the law in force at the date when the litigation was commenced, was not subject to the jurisdiction of the High Court. In Moti Ram's case(') an application for eviction of the appellant from 'hop was made in August 1956 under s. 13 of the East Punjab Urban Rent Restriction Act, 1949. An appeal . was provided under s. 15 of the Act from the order of the Rent Controller, and sub-s. ( 4) of s. 15 provided that the decision of the appellate authority, and subject only lo such decision, the order of the Controller shall be final. By Amending Act 29 of 1956 which came into force on September 24, 1956, the High Court was em-powered to call for and examine the records relating to any order passed under the Act for satisfying itself as to the legality or pro-priety of such order. The landlord's application was dismissed by the Rent Controller and in appeal the appellate authority con-firmed the order. Thereafter on the application of the landlord the High Court reversed the order. This Court rejected the con-tention that the High Court had no jurisdiction to entertain the revision application under s. 15(3) as amended. The decision brought before the High Court in exercise of its revisional juris-diction under s. 15(5) of the amended Act was delivered o.n August 19, 1958, after amendment of the Act on September 24. 1956. On the date on which it was made, the order had acquired no finality, for it was subject to an order which may be passed in revision application which may be filed before the High Court under the amended Act. Moti Ram's case(') has, therefore, no application to this case.

Counsel for the respondent urged that the extension of the jurisdiction of the High Court bys. 29(2) of Bombay Act 57 of 1947 as amended by Gujarat Act 18 of 1965 related not to any right in existence, but to matter of procedure, and on that ac-H count the Act as amended applied at the hearing, and in deciding 1hc revision application filed by the respondent the High Court

(2) [1955P S.C.R. ttl7.

fl) (l'J6G] 2 S.C.R. 896.

was bound to apply the amended Act. But when the revision application was entertained under s. 115 of the Code o[ Civil Procedure, the High Court assumed to itself limited jurisdiction conferred by that section, and in the absence of any express provi· sion made in the Amending Act, the jurisdiction conferred by that section could not be extended. The question whether the High Cou1t could in exercise of its jurisdiction set aside, modify or alter the decision of the appellate court was not matter. of proce-dure. The order of the appellate court, subject to scrutiny by the High Court within the limited field permitted by s. 115 of the Code of Civil Procedure, was final. In conferring upon the High Court wider jurisdiction for the purpose of determining whether the decision of the appellate court was according to law, the Legis· lature did not attempt to legislate in the matter of procedure. The Legislature expressly sought to confer upon the High, Court power to reopen questions which till then were to be deemed finally decided.Counsel for the respondent also submitted that s. 29(2) as amended was intended to have retrospective operation, because the Amending Act was in the nature of explanatory legislytion. There is nothing in the language of s. 29(2) as amended, which may indicate that it was intended to be retrospective in operation. Sec· tion 29(2) as amended in terms confers jurisdiction upon the High Court to call for the record of case for the purpose of satisfying itself that the decision in appeal was according to law, which the High Court did not possess before the date of the Amending Act. The amending clause does not seek to explain any pre-existing legislation which was ambiguous or defective. The power of the High Court to entertain petition for exercising revisional juris· diction was before the amendment derived from. s. 115 Code of Civil Procedure, and the Legislature has by the Amending Act attempted to explain the meaning of that provision. An explana-tory Act is generally passed to supply an obvious omission or to clear up doullts as to the meaning of the previous Act. Section 29(2), before it was en11cted, was precise in its implication as well as in its expression : the meaning of the words used was not in doubt, and there was no omission in its phraseology which was required to be supplied by the amendment.

The appeal is therefore allowed and the order passed by th~ High Court is set aside, and the proceeding is r~manded to the High Court to deal with and dispose of the revision application on the footing that it is governed by s. 115 of the Code of Civil Procedure under which it purports to have been filed. The. costs of this Court will be costs in the High Court.

R.K.P.S.