Bombay High Court
Piroja M. Mehta vs Hambai Jamshedji Cama (Dr.) And Ors. on 11 July, 1988
Equivalent citations: 1988(3)BOMCR1, (1988)90BOMLR292
JUDGMENT R.A. Jahagirdar, J.
1. This petition arises out of proceedings instituted by the respondents for possession of the premises tenanted by the petitioner. The premises are situated at Mahabaleshwar in Satara District. The respondents are the landlords of the petitioner. They served upon the petitioner a notice on 23rd of May, 1979 under section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as the Bombay Rent Act , demanding from the petitioner a sum of Rs. 3,675/- which was the rent due from 1st August, 1977 to 30th of April, 1979. Since there was no compliance with the demand made by the notice, the respondent filed a suit, being Regular Civil Suit No. 1 of 1980, in the Court of Civil (Judge, Junior Division), at Wai.
2. The petitioner resisted the suit by contending that if proper account was taken of the amounts due from the parties to each other, there would be no arrears of rent as contended by the respondents. The petitioner also contended that the rent was Rs. 2000/- per annum the rent was payable, according to the petitioner, by the year and not by the month. The petitioner also alleged that she had spent a sum of Rs. 20,000/- on repairs to the suit premises. According to the petitioner, the suit fell under section 12(3)(b) of the Bombay Rent Act and not under section 12(3)(a) thereof.
3. The learned trial Judge, by the judgment and order dated 28th of April, 1986, decreed the suit for possession and also directed the petitioner to pay a sum of Rs. 5,125/- which, according to the learned trial Judge, was the arrears of rent from August 1977. The learned trial Judge recorded a finding that the petitioner was in arrears of rent for more than six months and the demand made in the notice under section 12(2) of the Bombay Rent Act was not met by the petitioner and hence the case fell squarely under section 12(3)(a) of the Bombay Rent Act. The decree for possession was thus inevitable in the light of the law laid down by the Supreme Court in Harbanslal v. Prabhudas, . The learned trial Judge also negatived the claim of the petitioner of having spent a sum of Rs. 20,000/- for repairs and improvements of the suit premises.
4. This decree was challenged by the petitioner in an appeal, being Civil Appeal No. 305 of 1986. A revision application was preferred, being Civil Revision Application No. 12 of 1986, on the question of the standard rent. The trial Court had held that the question of deciding the standard rent did not arise at all, but if it arose, it would fix the same at Rs. 175/- per month which, in fact, was the contractual rent. Both the civil appeal and the revision application were disposed of by the learned District Judge, Satara, by his judgement and order dated 13th of August, 1987. For the reasons which had commended themselves to the Court of first instance, the learned Appellate Judge also negatived the contention of the petitioner that she was not in arrears of rent warranting a decree for eviction. The learned Appellate Judge also dismissed the revision application by the same judgement and order which are now the subject-matter of challenge in this petition under Article 227 on the Constitution of India.
5. Mr. Kamat, the learned Advocate appearing for the petitioner, has, before proceeding to make submissions on the merits of the petition, sought to contend that in view of the amendment which has been made to section 12(3) of the Bombay Rent Act by the Maharashtra Act No. XVIII of 1987, this Court should fix a date for the payment of arrears of rent and if is only if the petitioner does not pay the arrears of rent on the date so fixed that the petitioner will, according to the amended Rent Act, be liable for eviction. This question is involved in several other petitions which have been grouped together for hearing before me. The petitioners in all these petitions are tenants, while the respondents are landlords. I have heard in support of the contention made by Mr. Kamat the other Advocates who have also appeared for the petitioners in the respective petitions. Mr. V.T. Walawalkar, Mr. P.L. Nain, Mr. N.B. Shah and Mr. A.P. Shah have joined to support the contention of Mr. Kamat. For the respondents Mr. K.J. Abhyankar, Mr. M.A. Rane and Mrs. Gold Bharucha have controverted the position taken on behalf of the petitioners and have contended that section 12(3) of the Bombay Rent Act, as amended by Maharashtra Act No. XVIII of 1987, is prospective and cannot be given retrospective effect. During the course of this judgement, I am referring to the arguments made on behalf of the petitioners on the one hand and the arguments on behalf of the respondents on the other without mentioning at every step the arguments which were advanced by a particular Advocate.
6. When the question for consideration is whether a statute is retrospective which would affect the existing rights and liabilities, it is often helpful to determine the question by considering the State of law prior to the amendment. It is for this reason that I am proceeding to briefly refer to the development of the Bombay Rent Act in Maharashtra during the last four decades. The Act of 1947 which has now been amended by Maharashtra Act No. XVIII of 1987 itself replaced an earlier law on the rent restriction. That Act was called the Bombay Rents, Hotel and Lodging House Rates Control Act, 1944. It was repealed by section 50 of the Act of 1947. My reference to this Act and the Act of 1947 is limited here to the provisions which enable a landlord to obtain possession of tenanted premises on the ground that the tenant is in arrears of rent. Section 9 of the Act of 1944 provided that the landlord shall not be entitled to the recovery of possession of any premises so long as the tenant paid or was ready and willing to pay rent to the fullest extent allowable and performed the other conditions of the tenancy. The corresponding provisions, sub-sections (2) and (3) of section 12, in the Act of 1947, when it was originally enacted, were as follows:-
"(2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882.
(3) No decree for eviction shall be passed in any such suit if, at the hearing of the suit, the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of suit."
7. From the above provisions it is seen that if the tenant paid at the hearing of the suit or tendered in Court the standard rent and permitted increases then due together with the costs, a decree for eviction could be avoided. It is also necessary to note that the provisions did not make any distinction between a case of arrears of rent where there is a dispute about the rent and a case or arrears of rent where there is no such dispute. They were all covered by sub-sections (2) and (3) mentioned above. However, Explanation was added to section 12 which said that if there was a dispute as to the amount of standard rent, then it would be presumed that the tenant was ready and willing to pay such amount if an application for fixation of standard rent was made by him. Though the words "relief against forfeiture" were not used in sub-section (3) of section 12, the effect of the provision was to provide relief against forfeiture to the tenant who paid the amount at the hearing of the suit. There was no mention of the first date of any other date which may be fixed by the Court.
8. Then came further amendment by Bombay Act No. 61 of 1953, which considerably changed the completion of the suits filed for possession on the ground of arrears of rent on the part of the tenants. Sub-section (2) of section 12 prior to the amendment in 1953 was retained in the amendment of 1953, but sub-section (3) was altered considerably. It is necessary to reproduce the same :-
"(3)(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the Court shall pass a decree for eviction in any such suit for recovery of possession.
(b) In any other case no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court."
9. Though from time to time some amendments have been made in the order provisions of the Bombay Rent Act, section 12(3)(a) and (b) remained unaltered till 1st of October, 1987 when the Amending Act No. XVIII of 1987 came into force. For the purpose of understanding the scope and the meaning of the amendments made by the Amending Act, reference will be made later to the other provisions of the Amending Act, but at this stage it should be noted that sub-section (3), as it stood, was repealed and the following was substituted by section 11 of the Amending Act :-
"(3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground of arrears of standard rent or permitted increases if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and together with simple interest on the amount of arrears of such standard rent and permitted increases at the rate of nine per annum; and thereafter continues to pay or tenders in Court regularly such standard rent or permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court."
10. The charges made are conspicuous. The distinction between two classes of suit, namely where there is a dispute about the standard rent, and where there no dispute about the standard rent, was obliterated; so also the distinction between cases where the rent is payable by the month and where the rent is not so payable was also removed. All suits which are instituted after the notice under section 12(2) is given are to be treated on the same level by the new sub-section (3) Introduced in section 12 of the Bombay Rent Act. Another striking feature of the new provision is the opportunity given to the tenant to pay the arrears of rent on the first day of hearing of the suit or on or before such other date as the Court may fix. The third striking feature is that an amount by way of interest at the rate of 9 per cent per annum is also to be paid on the amount due. The tenant is also obliged to go on paying the rent till the suit is finally decided.
11. The drastic amendment of sub-section (3) of section 12 was probably thought to be necessary by the legislature because of the several conflicting interpretations of the old sub-section (3) by the courts and also probably by the fact that there was considerable difficulty in interpreting the two clauses of old sub-section (3) of section 12. The Statement of Objects and Reasons accompanying the Bill, which became Maharashtra Act No. XVIII of 1987, has stated the following reason for the amendment of section 12(3):-
"With regard to the proceedings for recovery of possession by landlord on the ground of tenant having remained in arrears of rent, section 12(3) divides the tenants in arrears of rent into two categories:-
First, consisting of those in whose cases (1) rent is payable by month, (ii) there is no dispute regarding the amount of standard rent or permitted increase, and (iii) rent has been in arrears for a period of six months or more; and the Second, consisting of those not falling in the first. If the tenants falling in the first category neglect to make the payment within a period of one month after receiving notice from the landlord, provided for in sub-section (2) of section 12, they are liable to be ejected by obtaining a decree from the Court. As regards tenants falling in second category, they are not liable to be ejected by decrees if they pay or tender in Court standard rent and permitted increases due, on the first day of hearing of the suit or before such other date as the Court may appoint in that behalf, and continue to pay or tender in Court regularly such rent and permitted increases till the disposal of suit and pay the costs of the suit as directed by the Court. With a view to curbing the tendency of certain tenants to remain in arrears of rent it is proposed to provide that the tenant pays in Court on the first day of hearing the amount of rent, etc. due together with simple interest on such amount at the rate of nine percent per annum and that a relief to be granted by the Court under sub-section (3) shall not be available to a tenant to whom relief against forfeiture was given in any two suits previously instituted by the landlord against such tenant".
12. The discretion given to the Court to allow a tenant to pay the rent on any other date to be fixed by it is probably necessitated by the possibility of the requirement to make investigation into the rival contentions of the parties. The landlord may be alleging that the standard rent is of a particular amount which the tenant may be denying in his written statement. So in every case it is not necessary that the tenant should pay the arrears of the rent on the first day of hearing. It may also be noted that in the Bombay Rent Act, prior to its amendment in 1953 in order to be relieved against forfeiture the tenant could pay the rent at the hearing of the suit. As will be seen presently, this has been interpreted to mean by a Division Bench of this Court that the tenant could pay the arrears of rent at any time during the hearing of the suit or even during the hearing of the appeal. It has been so interpreted on the basis that the appeal is a continuation of the hearing of the suit.
13. The Advocates appearing for the petitioners have suggested that the section is retrospective, may be on three grounds. In the first place, it was argued that the amendment made by Act No. XVIII or 1987 was procedural and, therefore, must be held to be retrospective. It was secondly argued that section 25 of the Amending Act gave rise to the inference that the provisions of the Amending Act are retrospective and must apply to all the proceedings pending at whatever stage. They have also urged that the language of the amended section itself is sufficiently persuasive to the view that the sub-section is retrospective.
14. The argument that sub-section (3) of section 12, as amended, is procedural, is not acceptable. Sub-section (3) creates rights and liabilities on the parties to a suit. The original sub-sections (3)(a) and (b) also dealt with the right that would accrue to a landlord and the liability that would attach itself to the tenant. Since the sub section, whether before or after the amendment of 1987, provided for rights and liabilities of the parties, it could not be legitimately suggested that sub-section (3) is procedural. The provision relates to substantive rights and obligations of the parties. It this is so, in accordance with the well-established rules of interpretation of statutes, it should be held that the amended sub-section (3) is prospective and not retrospective. This is on the basis of the clear words in the provision itself. It is not suggested that contrary would be the case by necessary implication.
15. Moreover, it should be noted that the amended sub-section (3) applies to the suit in which at least the first day of hearing is yet to arrive. It does not speak of proceedings under the Bombay Rent Act, but specifically mentions the suit. It also mentions that a tenant can avoid a decree for eviction if he pays the amount on the first day of hearing or on any other date that may be fixed by the Court. This must, in my opinion, necessarily mean that the provision is applicable to suits which have not, on the date of the amendment, arrived at the stage of first hearing. More about this would be said later in the judgement.
16. Section 25 of the Amending Act is in the following terms:-
"25. Nothing contained in the principal Act, as amended by this Act, shall be deemed to authorise the re-opening of any suit or proceeding for the eviction of any person from any premises to which the principal Act applies as if such proceeding had been finally disposed of before the commencement of this Act.
Explanation.---For the purposes of the section, suit or proceedings, as the case may be, shall not be deemed to have been finally disposed of, if in relation to that suit or proceeding, any appeal or proceeding is pending, or, if the period of limitation for preferring an appeal or proceeding as the case may be, had not expired before the commencement of this Act."
In my opinion, recourse to section 25 of the Amending Act in order to understand the correct meaning of the amended sub-section (3) of section 12 is not justified. It is at this stage that reference must be made to some other amendments which have been made in the Act. Prior to the amendment, sub-tenancies created between 21st of May, 1959 and 1st of February, 1973 were illegal. By the present amendment, the illegality is removed. It is also provided that the amendment shall always be deemed to have been on a statute book. There is also an amendment in Clause (b) of section 13(1). An Explanation as to what are not permanent structures has been added to the said clause. Section 25 provides for those situations where a decree might have been passed on the ground of illegal sub-tenancy or on the ground of erection of a permanent structure, and where some appeal or other proceedings are pending. Such a decree could not be allowed to be executed after the amendment as aforesaid which came into effect on 1st of October, 1987. If no appeal has been filed against the decree, then it will not be permissible to a tenant to take recourse to the retrospective nature of the amendment in respect of licences, sub-tenancies and permanent structures and to reopen the entire question by initiating collateral proceedings. However, section 25, read with its Explanation, allows the reopening of any such suit or other proceedings if the same are pending in the sense mentioned by the Explanation. To put in different words, any question which has been settled on the basis of the law before the commencement of the Amending Act cannot be reagitated in any other collateral proceedings.
17. The relevance of section 25 to the interpretation of section 12(3) is not established. The words till the suit is finally decided to be found in the amended sub-section (3) have no relevance or connection to the words if such proceeding had been finally disposed of in section 25 of the Amending Act. What section 25 does is to put an embargo any further reopening of the question which has been decided before the commencement of the Amending Act. This embargo is slightly lifted in case any appeal or proceeding is pending or if the period of limitation for preferring an appeal or proceeding has not expired before the commencement of the Amending Act. The two provisions, namely sub-section (3) of section 12, as amended, and section 25 of the Amending Act, deal with altogether different stages and levels. The words in one section cannot be interpreted in the light of similar words in another provision. One provision does not control the other.
18. Before going to analyse the provisions of the amended section, it is necessary to examine several authorities which have been cited during the course of the arguments to find out whether any of the propositions in the said authorities are helpful in understanding the provision in section 12(3). The Advocates for the petitioners have relied upon some authorities which mention that an appeal is a continuation of the suit. There is no dispute about this proposition, but the question is whether Section 12(3) applies to any proceedings other than the suit. In Dayaram Kashiram Shimpi v. Banshilal Raghunath Marwari, 55 Bom.L.R. 30, the words "at the hearing of the suit that occurred in section 12(3) of the Bombay Rent Act before its amendment in 1953 were considered. The facts of that case disclose that the suit had been filed by the landlord against the tenant on the ground of default in the payment of rent. Both the trial Court and the Appellate Court had held that the tenant was in arrears of rent, deserving a decree of eviction. The tenant had, after the judgement in the trial Court but before the appeal had been filed against the decree, offered to deposit the entire amount in the trial Court which refused to accept the same. The appeal Court held that amount was rightly not accepted by the trial Court and itself did not accept the amount offered by the tenant. The decisions of the two Court were challenged in a civil revisions application in the High Court, which was allowed by a Division Bench of this Court. The judgement in revision pointed out that an appeal is a continuation of the suit. If it is so, there was no impediment in the way of the Appellate Court in accepting the amount tendered by the tenant. If the law permitted payment of arrears of rent at the hearing of the suit, it necessarily permitted such payment at the hearing of appeal which was a continuation of the suit. On this ground the Division Bench found that the lower Appellate courts had not exercised the jurisdiction vested in it by law. Therefore, this Court itself proceeded to fix time for the payment of arrears.
19. It was suggested on the basis of this authority that the amount of arrears of rent could be paid at any stage, even at the revisional stage or at the stage of proceeding under Article 227 of the Constitution of India. This suggestion is clearly misconceived. As I have already mentioned above, the revisional Court in Dayaram Kashiram Shimpi's case found that the lower Appellate Court had refused to exercise the jurisdiction which, according to the judgement, it possessed in such a case. The revisional Court naturally did what the appeal Court was competent to do. It must be noted that the words which permitted the appeal Court to accept the payment of the arrears of rent made by the tenant were at the hearing of the suit. Since the appeal is a continuation of the suit, the Division Bench held that the payment could be accepted even at the appellate stage.
20. The first day of hearing of the suit cannot be equated with the first day of hearing of the appeal. There cannot be two first days for the purpose of payment mentioned in section 12(3) of the Bombay Rent Act. If the first day of hearing of the suit mentioned in section 12(3) has come and gone, it cannot be restored at the appellate stage. If the legislature thought that an opportunity should be given to the tenant to make payment even in an appeal, especially when the first payment has to be made on the first day of hearing of the suit, it would have provided accordingly. It could have said for instance : "if the tenant pays the arrears of rent on the first day of hearing or on any other date in any of the proceedings relating to possession". In my opinion, the decision in Dayaram Kashiram Shimpi's case is of on assistance in under standing section 12(1) of the Bombay Rent Act.
21. Lachmeshwar v. Keshwar Lal , was relied upon for the purpose of shoeing that if during the pendency of the appeal there is a change of law, then the appeal Court can take that into account and mould the relief accordingly. That the Court of appeal can take cognisance of subsequent events after the disposal of the suit but during the pendency of the appeal is a well-established proposition. On this basis it has been suggested that during the pendency of the appeals from the decrees passed prior to the commencement of the Amending Act, the change in law effected by the Amending Act should be taken into consideration.
22. It is not possible to accept the above suggestion because the language of section 12(3) dose not warrant the re-opening of any question that has been concluded by the judgement which passed the decree for eviction. This cannot be done because the stage of payment, namely the first day of hearing, has already passed by when the Amending Act came into force. The Amending Act dose not say that the payment could be made on the first day of hearing of the suit or on the first day of the appeal. The scheme that emerges from the provisions contained in section 12(3) of the Bombay Rent Act, read with the other provisions of the said Act, is as follows :- A notice for demanding arrears of rent has been issued by the landlord to the tenant; there is no compliance on the part of the tenant with the notice; thereafter the landlord has filed a suit for possession. If the suit has already been filed prior to the commencement of the Amending Act, then naturally the provisions of the Amending Act would not come into pay. The absence in section 12(3) of a provision of the type to be found in section 25 is also argument in favour of holding that section 12(3) is not retrospective. There is an authority for the proposition that if an Act has made provisions for retrospective operation for some of its provisions, then it would not be proper to read a retrospective effect in the other provisions. See S.T. Officer, Moradabad v. Oriental Coal Corporation, .
23. It has not been possible to appreciate the relevance of Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra, A.I.R. 1961 Supreme Court 1956 (hereinafter referred to a S.B.K. Oil Mills case) to the question which is before me. In that case, the tenancy which had commenced in the year 1942 had come to an end in March 1957 by efflux of time. In April 1957, a suit for possession was filed. While the suit was pending, a notification applying the provisions of the Bombay Rent Act to the area in question was issued. It was held that section 12(1) applied on the date on which the Act was extended to the area. Several contentions had been raised before the Supreme Court and those arguments though interesting, were not considered for the expression of any final opinion. The Supreme Court proceeded to note that the contention urged that section 12(1) applied from the date on which the Act was extended to the area in question was sound. It was held that section 12(1) enacts a rule of decision. The judgement of this Court in Nilkanth Ramchandra v. Rasiklal, 51 Bom.L.R. 280 which had been approved earlier by the Supreme Court was held to lay down the correct law. However, the following observations to be found in S.B.K. Oil Mills' case may be noted:-
"But a section may be prospective in some parts and retrospective in some parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation, if the intention of the legislature is apparent. This in more so, when Acts are passed to protect the public against some evil or abuse."
24. Some key is provided by the Statement of Objects and Reasons to which I have already made reference. But the language of section 12(3), as amended, itself does not suggest that it is retrospective. On the other hand, Garikapati Veeraya v. Subbiah Choudhary , suggests that the institution of the suit carries with it the implication that all rights prevalent at the time of the institution of the suit will prevail. No doubt, Garikapati Veeraya's case was dealing with the question as to whether the right of appeal which was available at the time of the institution of the suit could be taken away by the lack of a provision of appeal subsequently. But in my opinion, the principle that the law prevalent at the time of the suit must govern the parties till the suit is finally decided is deducible from this judgement.
25. The judgement of the Supreme Court in a case arising out of East Punjab Urban Rent Restriction Act may also be noticed at this stage. It is Moti Ram v. Suraj Bhan, . This judgement specially points out that amendments affecting vested rights are prospective, unless they are retrospective by express words or by necessary implication. In Moti Ram's case the application by the landlord for the eviction of the tenant was rejected by the Rent Controller. The appeal against the said decision was also dismissed. The matter went in revision to the High Court. The question whether the revisional jurisdiction could be exercised by the High Court when there was a finality attached to the appeal. It was noticed that the amending section giving revisional powers to the High Court had come into force before the appellate authority decided the matter. The necessary inference was that when the appellate order was actually passed, no finality could attach to the appellate order, as it was so under the earlier provision. It was pointed out in this judgement that where an amendment affects vested rights, the amendment would operate prospectively unless it is expressly made retrospective or its retrospective operation follows as a matter of necessary implication. Another observation to be found in paragraph 9 is worth noting :-
"Where the Legislature intends to make substantive provisions of law retrospective in operation it generally makes its intention clear by express provisions in that behalf."
26. Mst. Rafiquennessa v. Lal Bahadur Chetri, , had been often referred to and relied upon in the later judgement of the Supreme Court. It is advantageous to refer to the said judgement itself in order to understand the propositions for which it is an authority. The facts of that case disclosed that the lease deed executed by the respondent before the Supreme Court in favour of the appellant had expired by efflux of time on 12th of February, 1952. The suit for possession filed by the landlord was decreed. An appeal was preferred, the Assam Non-Agricultural Urban Areas Tenancy Act was passed when the appeal was pending. Section 5, which was amended provided that where under the terms of a contract entered into between a landlord and his tenant at any time, the tenant in entitled to build, and has built, a permanent structure, then the tenant shall not be ejected by the landlord from the tenancy except on the ground of non-payment of rent. The key words are the tenant shall not be ejected. The appeal, which was pending before the appellate Court, was a continuation of the suit and, therefore, the Supreme Court held that there was a legislative prohibition against the eviction of the tenant which prohibition had got to be enforced by the Court of appeal.
27. The Supreme Court explained this position in the following terms:-
"Incidentally, an appeal pending before the lower Appellate Court is a continuation of the suit, and so, there is no difficult in holding that a suit which was pending when the Act came into force would be governed by section 5(1)(a) and an appeal arising from a suit which had been decided before the Act came into force, would likewise be governed by section 5(1)(a), provided it is pending after the date when the Act came into force".
The fact that the legislature is competent to make laws which would override and materially affect the contracts between the parties, was noticed. It was thought fit by the Supreme Court to say the following in order to complete the statement of law relating to the construction of a statute in this regard :-
"We ought to add that retrospective operation of a statutory provisions can be inferred even in cases where such retrospective operation appears to be clearly implicit in the provision construed in the context where it occurs. In other words, a statutory provision is held to be retrospective either when it is so declared by express terms, or the intention to make it retrospective clearly follows from the relevant words and the context in which they occur."
28. Strong reliance has been placed by the learned Advocates appearing for the petitioners on the judgement of the Supreme Court in H. Shiva Rao v. Cecilla Pereira, . In that case, a decree for possession had been passed in respect of certain premises situated in village Pandavu on 30th of June, 1972. An execution application was filed on 15th of February, 1980. From the other side objections to the execution application were filed on 6th of December, 1980. It was when this execution was pending that the village was brought within the area to which the Karnataka Rent Control act applied. The notification making the Act so applicable was issued on 18th of July, 1983. Despite this, an order for delivery of possession was passed on 23rd of June, 1984. The question before the Supreme Court was whether the tenant could be evicted by an order passed after the coming into force of the Karnataka Rent Control Act. The answer was obvious, with great respect, in the negative because of the provisions contained in section 21(1) of the Karnataka Rent Control Act in the following words :-
"Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant."
From this it is clear that the order passed on 23rd of June, 1984 was naturally incompetent.
29. The facts in Lakshmi Narayan Guin v. Niranjan Modak, , showed that the Rent Act was applied during the pendency of the appeal. Since the appeal was a continuation of the suit, the law as prevailing at the time of the pendency of the appeal was applied and the suit was dismissed throughout. The relevant provision in the West Bengal Premises Tenancy Act was as follows :-
"notwithstanding anything to the contrary contained in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the grounds."
The Supreme Court examined the question as to the decree for the recovery of possession as mentioned in section 13(1) of the West Bengal Premises Tenancy Act :-
"ones the decree here refer to the decree of the trial Court or, where an appeal has been preferred, to the appellate decree? Plainly, reference is intended to the decree which disposes of the suit finally. It is well settled that when a trial Court decrees a suit and the decree is challenged by a competent appeal, the appeal is considered as a continuation of the suit, and when the appellate decree affirms modifies or reverses the decree on the merits, the trial Court decree is said in law to merge in the appellate decree, and it is the appellant decree which rules."
Since the object of sub-section (1) of section 13 was to protect the possession of the tenancy that protection was extended in the appeal where according to the Supreme Court, the tenant could legitimately invoke the protection of section 13(1) of the Act.
30. It would be useful to refer to the judgement of a Division Bench of this Court on a similar question under the Goa, Daman and Diu Buildings (Lease, Rent, and Eviction) Control Act, 1968 (hereinafter referred to as "he Goa Rent Act" In Shri Eknath Kira Akhadkar v. Administrative Tribunal), (Letter Patent Appeal No. 6 of 1983 decided on 12th of October, 1984 by K. Madhava Reddy, C.J. and Gadgil, J.), the question was whether section 22 of the Goa Rent Act, which was amended in the year 1976, was prospective or retrospective. Prior to the amendment in year 1976, section 22 provided that a landlord can apply to the Controller for eviction of a tenant and the Controller can make an order for eviction if he satisfied that the tenant was in arrears in payment of rent due by him. There was no provision at all of any notice being issued by the landlord before applying to the Controller for evicting the tenant. The proviso to section 22 stated that if Controller was satisfied that the tenant's default to pay the rent was not without reasonable cause, then the Controller would not pass an order for eviction but give the tenant a reasonable time, not exceeding 30 days to pay or tender the amount due.
31. After the amendment, it was made necessary for the landlord to serve a notice in respect of the arrears of rent and it was only when the tenant did not pay the amount within 30 days of the receipt of the notice that an application could lie against the tenant for eviction on the ground of arrears of rent. The question was whether the amendment was prospective or retrospective. It was easy for the Division Bench to notice that the amendment was prospective and the Division Bench said as follows :-
"We therefore think that apart from the fact that amendment disturbs the vested right of the landlord, it also introduces a condition which the landlord would be incapable of complying if he had already filed the proceeding."
32. The examination of the several authorities, which I have attempted above, establishes the following propositions :-
(1) A substantive provision is generally prospective unless there are clear words to the contrary or unless it is to be held retrospective by necessary implication.
(2) A section or an Act can be partly prospective and partly retrospective.
(3) The question as to whether a particular statute is retrospective or prospective can ultimately be decided by looking to the language of the section and the context in which it occurs.
The amended sub-section (3) of section 12 of the Bombay Rent Act visualise three things. In the first place, it envisages a suit for eviction on the ground of arrears of standard rent and permitted increases. If in such a suit either on the first day of hearing or on any other date the Court may fix the tenant pays or tenders in Court the rent and permitted increases, then the Court is debarred from passing a decree for eviction. The payment of rent by the tenant must, of course, be till the suit is finally decided. From this it is clear that the provision necessarily envisages a suit whose first day of hearing is yet to arrive. This obviously cannot apply to a suit which has been filed earlier and whose first day has expired.
33. It was urged before me that even if the first day of hearing of the suit has expired, the Court can fix another date for the payment of arrears of rent and the provision has empowered the Court to do so. I am reluctant to accept this interpretation because sub-section (3) must be deemed to give a discretion to the Court either to insist upon the payment on the first day of hearing of the suit or to fix another date on which the payment is to be made. If we interpret the section to give power to the Court only to pass the order in the alternative, then we are interpreting the section in such a way that the Court has no power to the insist upon the payment on the first day of hearing of the suit. Such a situation cannot be presumed to be intended on the part of the legislature.
34. Moreover, the words of importance are on the first day of hearing of the suit. If this is so, then the Court of appeal, even if an appeal is a continuation of the suit, cannot pass orders for the payment on the first day of hearing of the suit or any other date. If the legislature, which has made certain sections retrospective explicitly or by necessary implication, would not have failed to provide, if it intended to do, that the payment can be made at the hearing of the suit instead of saying on the first day of hearing of the suit. The legislature also could have provided that the payment can be made either in the suit or in any other proceeding which was pending at the time when sub-section (3) came into effect. When, therefore, section 12(3) speaks of a suit, it means the suit and not any proceeding. It is only the trial Court which has the power to decree the suit if on the first day of the hearing or on such other date as the Court may fix, the tenant has failed to deposit or tender the amount of arrears of rent. It is only when the trial Court has not acted in accordance with section 12(3) that the appeal Court, being a Court of correction, can correct the trial Court's judgement and decree.
35. Three types of suits can be contemplated. One is the suit which has been filed prior to the amendment and the first day of hearing in that suit has gone by. Secondly, there can be a suit which has been filed before the amendment, but the first day of hearing in that suit is to arrive after the amendment. Then there is the third type of suit which has been filed after the amendment and obviously its first day of hearing will arrive after the amendment. In my opinion, looking to the entire scheme of the Act and the intention of the legislature, as reflected in the words of section 12(3), it is the first two types of suits which are not covered by the amended section. It is the only third type of suits that are covered by the amendment. I venture to suggest this interpretation because it can be reasonably assumed that the legislature did not intend to make a further classification between the suits which were filed before the amendment. Moreover, once a suit has been filed on the basis of the steps taken by the landlord prior to the amendment, a vested right has accrued to him. Some liability is also fastened to the tenant. This right and this liability are not intended to be disturbed by the amendment. Further, there is the rule of law which says that the rights and liabilities of the parties are to be worked out on the basis of the law prevailing at the time of the suit, subject, of course, to any exception that may be made by the legislature either by express words or by necessary implication. That is not so in the present case.
36. What is the first day of hearing ? This question arose directly in Khanderao Malkarjun v. Anadrao, 60 Bom.L.R. 1039, and Tendolkar, J., decided as follows :-
The expression 'the first day of hearing' in section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, means, not the day fixed for return of the summons or the returnable day, but the day on which the judge applies his mind to the case, which ordinarily he would do at the time when the issues are determined.
37. In Dhansukhlal v. Dalichand, , the provisions of Section 12(3)(b) of the Bombay Rent Act were interpreted. While doing so, the Supreme Court had naturally to decide which was the first day of hearing. Dealing with this, the Supreme Court said :
The date fixed for settlement of issues was September 3, 1956 which can be taken to be the date of the first hearing of the suit for the purpose of the Act.
In Ved Prakash Wadhwa v. Vishwa Mohan, , a similar phrase had to be interpreted by the Supreme Court. It may be added that this was the main question arose in Ved Prakash Wadhwa's case. After examining the provisions of the Code of Civil Procedure, the Supreme Court stated as follows :-
"these provisions indicate that 'the first hearing of the suit' can never be earlier than the date fixed for the preliminary examination of the parties (O. X. R. 1) and the settlement of issues (O. XIV, R. 1(5))."
38. In Sham Lal v. Atme Nand Jain, (1987) S.S.C. 222, Ved Prakash Wadhwa's case was referred to and followed while interpreting the words the first hearing of the application in the East Punjab Urban Rent Restriction Act, 1949. On this question, the Supreme Court said as follows:
"The mentioned the summons i.e. June 26, 1969 in our considered opinion cannot be treated to be the day of first hearing of the ejectment application but it is the day for appearance of the defendant as on that day the Court does not take up the hearing or apply its mind to the hearing of the application. It is only after written statement is filed, the issues are framed and hearing commences."
From what has been mentioned in paragraph 9 of the judgement, it appears that the High Court in the judgement which was in appeal before the Supreme Court had held that the first hearing of the suit is when, after framing of issues, the suit is posted for trial, that is, production of evidence. The Supreme Court adopted as correct the decision of the High Court regarding the meaning of the expression 'at the first hearing of the suit'. "The first hearing of the suit", therefore, cannot under any circumstances be earlier that the date fixed for the preliminary examination of the parties and the settlement of the issues. In a given case, if a date is merely fixed for settlement of issues and another date is to be given for the hearing of the application or of the suit, then the letter date can be the first date of hearing. It is expected that the trial Court will indicate the first date on which the amount is to be tendered by the tenant.
39. Some arguments were advanced as to the correct meaning of the word "Proceedings" in section 25 of the Amending Act. It is not necessary for me to decide that question because in the petitions which are before me the only question that has to be decided is whether the amended section 12(3) is retrospective. I have held that it is not.
40. From the aforesaid discussion, the following propositions emerge :-
(1) Section 12(3) of the Bombay Rent Act, as amended by Maharashtra Act No. XVIII of 1987, is not retrospective but is prospective.
(2) All the suits which have been filed prior to 1st October, 1987 are to be governed by the law prevailing at the time of the institution of the suit, namely section 12(3) of the Bombay Rent Act before its amendment by Maharashtra Act No. XVIII of 1987.
(3) All suits for the recovery of possession on the ground of arrears of rent filed on or after 1st October, 1987 will be governed by the provisions of section 12(3) of the Bombay Rent Act, as amended by Maharashtra Act No. XVIII of 1987, irrespective of whether the notice under section 12(2) was given before or after the said date.
41. I have already in the beginning of this judgement narrated the facts leading to the present petition. It is patent from the facts so stated that the petitioner did not comply with the requisition made upon her by the landlords by the notice issued under section 12(2) of the Bombay Rent Act, that she did not make an application for fixation of standard rent within one month from the receipt of the under section 12(2) and that, indeed as the judgements of the two courts below show, she even did not make payments regularly when these proceedings were pending. In paragraph 3 of the petition, the petitioner has stated that in the months of July and November 1979, she sent bank drafts twice in each month to the respondents satisfying, according to the petitioner, the rent up to April 1979. In the first place, the amounts sent in the months of July and November 1979 are no compliance with the requirement of paying the rent due. Secondly, the courts below have held that the petitioner had not in fact sent the money by Bank drafts as mentioned by her. The decree under section 12(3)(a) of the Bombay Rent Act had thus become inevitable. The two courts below have, therefore, passed the correct decree. The Rule, therefore, is discharged, but there will be no order as to costs.
42. However, no request made by Mr. Kamat, and after hearing Mr. Abhyankar for the respondents, I am directing that the decree for possession shall not be executed till 1st of January, 1989 if the petitioner on or before 1st of August, 1988 files an affidavit in this Court:-
(i) affirming that she is in occupation of the suit premises and no other person is in possession thereof as a license or a sub-tenant or in any other capacity whatsoever;
(ii) giving an undertaking to this Court, which undertaking shall be deemed to have been accepted after the affidavit is filed, that she will give vacant and peaceful possession of the suit premises to the respondents on or before 31st of December, 1988.
(iii) giving a further undertaking that she will not induct any other person in the suit premises in any capacity whatsoever.
In case the affidavit as aforesaid is not filed on or before 1st of August, 1988 or in case there is a breach of the undertaking given in Clause (iii) above, the decree shall become executable immediately. The petitioner will also be liable for Contempt of Court or for perjury, as the case may be.