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  • provisions of s. 12(3) of Bombay Act LVII of 1947
  • s. 111(g) of the Transfer of Property Act.
  • s. 114 of the Transfer of Property Act.
  • s. 50 of this Act (Act LVII of 1947)
  • provisions the Act. Sub-section (2)
  • Bombay Act of 1947
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citation codes
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  • provisions of s. 12(3) of Bombay Act LVII of 1947
  • s. 111(g) of the Transfer of Property Act.
  • s. 114 of the Transfer of Property Act.
  • s. 50 of this Act (Act LVII of 1947)
  • provisions the Act. Sub-section (2)
  • Bombay Act of 1947
Smart Summary

Factual and Procedural Background

The landlord sued the tenant in ejectment to recover possession on the ground of default in payment of rent and on the basis that the tenancy had been duly determined by a notice. The tenant defended on three grounds: (a) rent had been regularly paid; (b) the landlord had waived the notice by subsequently accepting rent; and (c) the suit was not maintainable without the Rent Controller's certificate. The premises were let at a monthly rent of Rs. 7 (inclusive of electricity charges, as stated in the record).

The trial Judge found against the defendant on the pleaded grounds but noted that the tenant had produced in court the entire amount of rent due up to the end of March 1946 and the costs of the suit while the suit was pending. On that basis the trial Judge held that the tenant had expressed readiness and willingness to pay, refused to pass a decree for ejectment, and instead directed the defendant to pay rent by the 10th of every month; the decree was passed on April 18, 1946.

The landlord appealed. Pending the appeal, the Bombay Rents, Hotel and Lodging House Rates Control Act, Bombay Act LVII of 1947, came into force (the opinion records the date as April 13, 1948 in one place and elsewhere refers to February 13, 1948 in relation to the proviso). The lower appellate Court agreed with the trial Court's findings of fact but, relying upon a decision of Weston and Dixit JJ. in a case referred to as a Surjitlal matter, applied section 12(3) of the 1947 Act and held that the tenant was entitled to its protection because he had paid the rent due up to the date of the trial Court's decree; the appeal was dismissed and the trial decree confirmed on August 30, 1948. The landlord prosecuted a second appeal against this appellate decree to the court delivering the present opinion.

Legal Issues Presented

  1. Whether a tenant who was sued in ejectment before the Bombay Act LVII of 1947 came into force is entitled to the protection of section 12(3) of that Act.
  2. Whether the proviso added by subsequent legislation (the Ordinance I of 1949 and Act III of 1949) — and in particular the new proviso to section 50 (as amended) — prevents challenge to decrees passed between the dates specified in that proviso on the ground that the provisions of the new Rent Act rather than the old were applied, and whether that prohibition extends to appeals and execution proceedings.
  3. Whether the prohibition in the new proviso bars a challenge that a particular section of the new Act (specifically s. 12(3)) is inapplicable to the facts or is not retrospective.
  4. Whether the tenant could alternatively claim relief under section 114 of the Transfer of Property Act to avoid forfeiture for non-payment of rent in the circumstances of this case.

Arguments of the Parties

Appellant's Arguments (Mr. Chandrachud for the landlord)

  • The only ground on which the lower appellate Court refused to pass a decree for ejectment was reliance on a Divisional Bench decision (the Surjitlal decision) that was subsequently reversed by the Supreme Court; accordingly, the appellate decree in the present case ought to be reversed.
  • The appellate decree cannot attract the protection of the new proviso because that proviso—by its terms—excludes appeals and execution proceedings; therefore the appellant says the proviso does not prevent challenge to the appellate decree.
  • The new proviso merely prevents a party from challenging a decree solely on the basis that the new Act rather than the old should have been applied; it does not preclude a court from considering whether a specific section of the new Act (such as s.12(3)) actually applies as a matter of law to the case in question.

Respondent's / Tenant's Position (as reflected in lower Courts)

  • The tenant maintained that rent had been regularly paid and that the landlord had waived his notice by accepting rent.
  • The lower appellate Court (following the Surjitlal decision by Weston and Dixit JJ.) held that the tenant was entitled to invoke s. 12(3) of the 1947 Act because he had paid the rent due up to the time of the trial Court's decree; accordingly the appeal was dismissed and the trial Court decree confirmed on that basis.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court (in this opinion)
Surjitlal Ladhamal Chhabda v. (name partially omitted in text) — decision by Weston and Dixit JJ. Applied provisions of the new Rent Act to a first appeal arising from a suit that was instituted before the new Act came into force (i.e., applied s. 12(3) to such an appeal). The lower appellate Court relied upon this decision to hold that the tenant was entitled to the benefit of s. 12(3); the present Court examines and distinguishes that reliance in light of later Full Bench and Supreme Court decisions and subsequent legislative amendments.
Nilkanth Ramchandra v. Rasiklal (Full Bench) The Full Bench held that the proviso to s. 50, as originally worded, did not justify applying certain provisions of the Act (notably ss. 12(2) and 12(3)) retrospectively to suits and proceedings not required to be transferred; it concluded ss. 12(2) and (3) were prospective. The opinion treats the Full Bench's reasoning as identifying an anomaly in the original proviso and as forming the background to the legislative amendments (Ordinance I of 1949 and Act III of 1949). The Court adopts the Full Bench's view that ss. 12(2) and (3) are prospective in character.
Chandrasingh v. Surjit Lal (Supreme Court) The Supreme Court approved the Full Bench view that the proviso to s. 50 applied only to suits required to be transferred and that sub-sections 12(2) and 12(3) were prospective and could not be applied to suits filed before the Act came into force. The present Court relies on this Supreme Court approval to support its conclusion that ss. 12(2) and (3) cannot be applied to suits instituted before the Act's commencement and so the appellate Court was wrong to apply s. 12(3) to the present suit.

Court's Reasoning and Analysis

The Court proceeded through the following analytical steps, reflecting the text of the opinion:

  1. Legislative and judicial background: The Court reviewed the judicial conflict — the decision of Weston and Dixit JJ. applying the new Act to pre-Act appeals, the Full Bench decision in Nilkanth Ramchandra v. Rasiklal which rejected that approach for certain provisions (holding ss.12(2) and (3) prospective), and the prompt legislative response in the form of Ordinance I of 1949 and later Act III of 1949. The Ordinance/Act amended the proviso to s.50 and added a new proviso (cl.4) protecting the validity of decrees passed between the two dates mentioned in the proviso from being questioned solely on the ground that the wrong Act had been applied.
  2. Construction of the new proviso: The Court examined whether the new proviso covered appeals and execution proceedings. It concluded that an appeal is a continuation of a suit, and that the words "suits and proceedings" in the proviso must be taken to include appeals and execution proceedings for the proviso to make sense (noting that explicit exclusion of appeals and execution proceedings in the proviso only makes sense if those things would otherwise be included). Consequently, the Court held that a decree passed in appeal within the period specified by the proviso (which includes the appellate decree in this case, dated August 30, 1948) falls within the purview of the new proviso.
  3. Scope of the new proviso — what it bars: The Court then addressed the narrower question whether the new proviso bars all challenges to decrees passed in the specified period or only challenges that rest solely on the ground that one Act rather than the other should have been applied. The Court accepted the appellant's narrower construction: the proviso prohibits attacking a decree only on the single ground that the court applied the wrong Act (new v. old). It does not bar consideration of a plea that a particular section of the new Act (for example s.12(3)) is inapplicable to the case — that is, it does not prevent a court from determining whether a specific provision can be applied as a matter of law.
  4. Retrospectivity of ss.12(2) and 12(3): The Court emphasized that, in line with the Full Bench in Nilkanth and the Supreme Court in Chandrasingh v. Surjit Lal, the textual wording of ss.12(2) and (3) is such that they can only be prospective. Therefore, even assuming the general provisions of the Act were made retrospective by the proviso to s.50, ss.12(2) and (3) are exceptions and cannot be applied to suits filed before the Act came into force.
  5. Application to the present case: Because the present suit was instituted before the Act came into force, s.12(3) could not lawfully be applied to confer protection on the tenant. Consequently, the lower appellate Court's reliance on s.12(3) to refuse a decree of ejectment was incorrect.
  6. Alternative relief under s.114 Transfer of Property Act: The Court observed that relief under s.114 (power to grant relief to a tenant against forfeiture) is available in law, including to appellate courts. However, the scope of s.114 turns on the technical notion of "forfeiture" as defined with reference to s.111(g) of the Transfer of Property Act. The record did not contain the lease, nor was it shown that the conditions of s.111(g) were satisfied. No s.114 plea had been taken in the courts below, and the issue raised in the second appeal would involve mixed questions of fact and law requiring adequate material which was absent. The Court therefore declined to entertain that plea for the first time in the second appeal.
  7. Conclusion on correctness of appellate decision: For the foregoing reasons the Court concluded that the lower appellate Court erred in applying s.12(3) to a suit filed before the Act's commencement and that the appellate decree must be set aside.

Holding and Implications

Holding:

Appeal allowed. The decree passed by the lower appellate Court is set aside, and the plaintiff's (landlord's) suit for possession is decreed.

Immediate consequences and directions issued by the Court:

  • The Court directed that the defendant (tenant) deliver vacant possession of the premises to the plaintiff on or before October 1, 1952.
  • Execution of the decree was stayed for six months from the date of the judgment at the Court's instance (the appellant agreed not to execute the decree for that period).
  • During the period that the tenant remains in possession until delivery, the tenant must pay the plaintiff damages or compensation equal to the amount previously paid by way of rent.
  • The parties were directed to bear their own costs throughout.

Broader implications: The Court's decision rests on statutory construction — treating ss.12(2) and 12(3) as prospective despite a general proviso meant to have retrospective effect, and on confirming that the new proviso (as enacted by the Ordinance and Act III of 1949) prevents challenges to decrees passed within the specified period only on the narrow ground that the wrong Rent Act (old v. new) was applied. The opinion relies on prior Full Bench and Supreme Court authorities for the proposition that ss.12(2) and (3) are prospective; it does not purport to create a novel rule beyond that interpretive conclusion and the application of the legislative amendments to the facts before it.

Appeal allowed.
M.W.P

    Bhagwant Rambhau Khese v. Ramchandra Keshao Pathak

    Gajendragadkar, J.:—

    The short question which this appeal raises is whether a tenant who had been sued in ejectment by his landlord before the Bombay Rents, Hotel and Lodgin House Rates Control Act, Bombay Act LVII of 1947, ??? into force is entitled to the protection of s. 12(3) of the said Act. The landlord had sued the tenant to recover possession of the premises let out to him on the ground that the tenant had committed default in the payment of rent and the tenancy had been duly determined by a notice given by the landlord in that behalf. The defence was that the rent had been regularly paid, that the notice which had been given by the landlord had been subsequently waived by him by accepting rent from the tenant and that the suit was not maintainable without the Rent Controller's certificate. The premises were let out to the tenant on a monthly rent of Rs. 7 inclusive ??? electricity charges. The trial Judge found against the defendant on all the pleas made by him. He, however, took into account the fact that the entire amount of rent due till the end of March 1946 and the costs of the suit had been produced by the tenant in the Court pending the hearing of the suit. He, therefore, held that the tenant had expressed his readiness and willingness to pay and so he refused to pass a decree for ejectment in favour of the landlord. He directed the defendant to pay the rent on or before the 10th of every month and added that if the defendant failed to pay the rent regularly, the landlord would be entitled to take possession by executing the decree. This decree was passed on April 18, 1946.

    The landlord preferred an appeal against this decree. Pending the appeal Bombay Act LVII of 1947 came into force on April 13, 1948. The lower appellate Court agreed with all the findings of fact recorded by the learned trial Judge and would have reversed his decree but for the fact that a decision of this Court in Surjitlal Ladhamal Chhabda v. ??? Manibhai was cited before him on behalf of the ???. This was a judgment delivered by Weston and Dixit J., in Surjitlal's case in which they had applied the provisions ??? the new Act to a first appeal which had arisen from a suit ??? long before the new Act came into force. Relying upon ??? judgment the lower appellate Court held that the tenant was entitled to invoke the benefit of s. 12(3) of Bombay Act ??? of 1947; since the tenant had paid the whole amount of the rent due until the date of the trial Court's decree and the ??? of the suit, the tenant was naturally given the protection of the provisions of the said sub-section. The result was that the appeal was dismissed and the decree passed by the Trial Court was confirmed, though for entirely different reasons. This decree was passed on August 30, 1948. It is this decree which is challenged by the landlord before us in the resent second appeal.

    Now, in dealing with the question as to whether the provisions of s. 12(3) of Bombay Act LVII of 1947 apply in the resent case it is necessary to refer to another decision of this Court and the amendment of the Act to which it led. After ??? and Dixit JJ. had delivered their judgment in ??? case a Full Bench was constituted to consider the ??? question in Nilkanth Ramchandra v. Rasiklal. The point which the Full Bench had to consider was whether having regard to the provisions contained in the proviso to 50 of the Act the other provisions of the Act were ??? to the suits which were not required to be transferred under the said proviso. This proviso as it originally stood ??? that all suits and proceedings except appeals and ??? proceedings as described in the proviso which were ending in any Court shall be transferred to and continued before the Courts named in the Act and that all the provisions of this Act and the rules made thereunder shall apply ??? all such suits and proceedings. Weston and Dixit JJ. ??? held that though the proviso expressly excluded appeals ??? execution proceedings from its purview, there was no justification for not allowing the application of the provisions of this Act to appeals, since appeals are in substance continuation of the suits themselves. The Full Bench was called upon to consider whether this view was right. Full Bench held that this view was not justified by the ??? of the proviso to s. 50. According to the Full Bench condition precedent for applying the provisions of the to the suits and proceedings was that these suits and proceedings should be pending in Courts from which they were ??? to be transferred to other Courts named in the ??? Suits and proceedings which were not required to be transferred because they were already pending in Courts were competent to try them even under the new Act outside the scope of the proviso altogether and so there ??? no occasion to apply the provisions of the new Act to ??? suits. Incidentally the Full Bench also considered the question as to whether s. 12 was retrospective or ??? Section 12(1) provides that the landlord would not be entitle to eject his tenant if the tenant pays or is ready ??? willing to pay standard rent and permitted increases, if ??? and observes and performs the other conditions of the tenancy in so far as they are consistent with the provisions the Act. Sub-section (2) lays down that no suit for recover of possession shall be instituted by a landlord against tenant on the ground of non-payment of the standard ??? or permitted increases due, until the expiration of one ??? next after notice in writing of the demand of the standing rent or permitted increases has been served upon the ??? in the manner provided in s. 106 of the Transfer of ??? Act. The Full Bench took the view that this sub-sect was clearly and unambiguously prospective, and that ??? if the other provisions of the Act were applicable to ??? and proceedings which fell within the purview of the ??? so to s. 50, s. 12(2) would not be applicable. In other ??? though the other provisions of the Act may be treated applicable restrospectively to suits and proceedings mentioned in the said proviso, this particular provision of s. 12 would be an exception and it would not apply ??? at all. The Full Bench reached the same ??? with regard to the provisions contained in s. 12(3). The last sub-section lays down that no decree shall be passed any such suit if at the hearing of the suit the tenant ??? or tenders in Court the standard rent or permitted ??? then due together with the costs of the suit. The view ??? this sub-section also was prospective was a necessary ??? of the conclusion that s. 12(2) was prospective. ??? terms sub-s. (3) refers to “such suits’, meaning such suits as are mentioned in sub-s. (2), and if sub-s. (2) was prospective there could be no doubt that sub-s. (3) is also prospective. In coming to this conclusion it was pointed out in the judgment of the Full Bench that the Legislature may not have intended to make any distinction between suits which were required to be transferred and those which were not required to be transferred under the provisions of the proviso to s. 50, and it was conceded that the distinction which had to be made between the two classes of suits on the words used in the proviso really amounted to an anomaly. The learned Chief Justice who delivered the judgment of the Full Bench, therefore, suggested that Legislature may put an end to this anomaly by making suitable amendments in the said proviso.

    The Legislature in fact acted promptly and an Ordinance was issued on February 3, 1949; Ordinance I of 1949. It was stated in the Aims and Objects of this Ordinance that the object in issuing the Ordinance was to make it clear that the Bombay Act of 1947 applied to all suits and proceedings of the nature described in the proviso whether they were required to be transferred or not. In other words, the anomaly which resulted from the defective wording of the original proviso was corrected by the amendments made by this Ordinance. A large number of suits were pending in many Courts in the mofussil and they were not required to be transferred since the Courts where these suits and proceedings were pending were themselves competent to try similar suits under the provisions of this Act. This Ordinance effected another amendment whereby the brackets and words “(other than execution proceedings and appeals)” which had originally occurred in the proviso itself were taken out from the proviso and a provision was made in respect of these by a separate proviso. Thus this proviso laid down that nothing in the proviso to s. 50 shall apply to execution proceedings and appeals arising out of decrees or orders passed before the coming into operation of this Act and such execution proceedings and appeals shall be decided and disposed of as if the Act had not been passed. By cl. 4 the Ordinance introduced another proviso, and by this proviso it was laid down that “the validity of any decree or order passed in any suit or proceeding referred to in s. 50 of this Act (Act LVII of 1947) between February 13, 1948, and the date on which this Ordinance comes into force (February 3, 1949) shall not be questioned only on the ground that such suit or proceeding should have been decided and disposed of in accordance with the provisions of this Act and not in accordance with the provisions of any of the enactments repealed by this Act or vice versa.” The proviso which has thus been added by cl. 4 of the Ordinance will hereafter be referred to as the new proviso. It would be noticed that the two dates mentioned in this proviso are significant. On February 13, 1948, the Act itself came into force, whereas the Ordinance came into force on February 3, 1949. This Ordinance was ultimately followed by Act III of 1949 which received the assent of the Governor General on March 31, 1949. This Act incorporates the amendments already made by the Ordinance and provides that the said amendments are intended to be retrospective and that they should be read as if they had been included in the original Act LVII of 1947 when it came into force.

    Whilst these amendments were being made, the decision of Weston and Dixit JJ., was being challenged before the Supreme Court by the landlord (Chandrasingh v. Surjit Lal). When this appeal was argued before the Supreme Court the judgment of the Full Bench of this Court in Nilkanth Ramchandra v. Rasiklal was cited by the landlord and the Supreme Court in terms approved of the views expressed in the Full Bench judgment. Mr. Justice Mahajan who delivered the judgment of the Supreme Court held that as the proviso to s. 50 stood it could apply only to suits which were required to be transferred and he added that whatever the effect of the said proviso otherwise may be, the provisions of sub-ss. (2) and (3) of s. 12 were prospective and could not be applied to suits filed before the Act came into force. Incidentally, it may be mentioned that at the time of the arguments the provisions of the Ordinance were mentioned before the Supreme Court, but they had no occasion to consider the said provisions and have expressed no opinion on the effect of the amendments subsequently made by the Ordinance itself.

    Mr. Chandrachud for the appellant contends that the only ground on which the lower appellate Court refused to pass a decree in favour of the landlord was that a Divisional Bench of this Court had applied the provisions of s. 12(3) to a suit filed before Bombay Act LVII of 1947 came into force and his argument is, since the said decision has been reversed by the Supreme Court the decree passed by the lower appellate Court in the present case must be similarly reversed. In our opinion, however, that is not the correct position. The dispute between the parties must now be decided in the light of the amendments made by the Ordinance and by Act III of 1949 and the landlord would be entitled to succeed only if he is able to challenge the legality of the decree in spite of the provisions contained in the new proviso which has been recently introduced by the said Ordinance and Act.

    As I have already mentioned, the effect of this proviso is that a decree passed in a suit or proceeding cannot be challenged only on the ground that the provisions of the new Act have been applied if the decree is passed between February 13, 1948, and February 3, 1949. In the present case the appellate decree falls within the period mentioned in this proviso. Mr. Chandrachud, however, says that a decree passed by the lower appellate Court cannot attract the provisions of this proviso because it is not a decree passed in a suit or a proceeding referred to in s. 50. Mr. Chandrachud seeks to make a distinction between suits and proceedings mentioned in s. 50 on the one hand and appeals and execution proceedings on the other. He contends that it is now made clear that nothing in the proviso to s. 50 will apply to appeals and execution proceedings and he says that the effect of this provision is to emphasise the distinction between suits and proceedings on the one hand and appeals and execution proceedings on the other. We are free to confess that we have found it very difficult to put a reasonable construction upon the new proviso. On the whole we are, however, disposed to take the view that a decree passed in appeal would come within the purview of this proviso because an appeal is a continuation of the suit. Besides, appeals and execution proceedings are themselves referred to in s. 50, though it may be for the purpose of laying down that the provisions contained in the proviso to the said section do not apply to such appeals and execution proceedings. The intention of the Legislature obviously was to avoid confusion in regard to suits and proceedings which had been filed before the new Act came into force, and it seems to us that we would merely be giving effect to that intention if we hold that the provisions of this proviso apply as much to suits filed before the Act came into force as to appeals arising from such suits, provided of course that the decree should have been passed within the period mentioned in this proviso. Besides, it has to be remembered that the original proviso to s. 50 as well as the subsequent amendments have expressly laid down that the provisions in the proviso would not apply to appeals and execution proceedings. This would be necessary only if the expression ‘suits and proceedings’ would ordinarily have included appeals and execution proceedings; if this expression had not included appeal and execution proceedings it would have been ??? to lay down that the provisions of the proviso would not apply to appeals and execution proceedings. Therefore, the words ‘suits and proceedings’ must be deemed to include appeals and execution proceedings, and in that sense the must proviso must be held to apply to the decrees passed in appeal as much as to the decrees passed in the suits.

    That, however, does not finally dispose of this matter Mr. Chandrachud has further addressed to us an interesting argument on the effect of this proviso itself. Mr. Chandrachud says that all that this proviso does is to prevent a part from challenging the decree solely on the ground that the provisions of the new Act should not have been applied Mr. Chandrachud says that he does not challenge the decree on the broad and general ground that the provisions of the new Act have been improperly applied to the appeal ??? which we are concerned. His argument is that even though the provisions of this new Act may in a general sense be ??? to be applicable, we must still be satisfied that the provision of the particular section on which reliance is placed by the tenant apply to his case. In other words, the question as ??? whether the provisions of a particular section apply to particular case either in fact or in law is outside the ??? of the proviso altogether. We think this argument is well founded. Indeed, it is only when the provisions of the ??? Act are held applicable to the proceedings before us that the further question arises whether s. 12(3) can be invoked ??? the tenant or not, and in dealing with this question we have to consider whether this section is retrospective. It is true that the effect of the provisions contained in the proviso ??? s. 50 is to make all the provisions of the Act generally applicable to the suits therein described and in that sense ??? policy of the Legislature was to make the provisions of the Act retrospective. But when we find that sub-ss. (2) and ??? of s. 12 are so worded that they cannot possibly be treated as retrospective, we must hold that these two sub-sections ??? an exception to the general rule deducible from the ??? to s. 50. That was the view which the Full Bench took in Nilkanth's case and that is the view which the Supreme Court have clearly approved in Chandrasingh v. Surjit Lal. In our opinion as the words of ss. 12(2) and (3) stand, there can be no doubt whatever that these two sub-sections are prospective and cannot at all apply to suits filed before the Act came into force. If that be the true position, we do not see how the appellant can be precluded from raising this point before us. The point thus raised does not amount to a plea that the provisions of the new Act should not have been applied at all. In fact, it assumes that the provisions of this Act are applicable, and on that assumption we are asked to consider whether the provisions of s. 12(3) can apply. As we have already pointed out, the new proviso does not exclude the consideration of the plea that a particular section of the new Act has been improperly applied. In fact, if the trial Court or the appellate Court gives benefit of the provisions of s. 12(3) to the tenant even though he has not complied with the requirements of the said sub-section, it would clearly be open to us to entertain the plea that on the facts the said sub-section has been misapplied. Similarly, if the tenant is given the benefit of this sub-section where this sub-section cannot in law apply, we would be justified in considering this plea as well. Therefore, in our opinion the new proviso does not bar the point raised before us by Mr. Chandrachud.

    In construing the new proviso we have no doubt to bear in mind the fact that Legislature wanted to avoid confusion by enacting this proviso. Between the two dates mentioned in the proviso, Legislature was aware that the Courts in the State had taken two rival views as to the effect of the proviso to s. 50, and the object of the Legislature in introducing the new proviso was not to allow the decrees passed during the said specified period to be challenged only on the ground that the effect of the proviso to s. 50 had been misconstrued and the new Rent Act rather than the old had been applied or vice versa. But if the words used in the present proviso are clear and unambiguous, we must proceed to give them their natural meaning even though the result may be not wholly consistent with the object of the Legislature. It is well settled that if the words used in a statute are clear and unambiguous and they yield only to one meaning, Courts cannot refuse to give the words that meaning on the argument that the said meaning is not consistent with the hypothetical intention of the Legislature. If the words in question are ambiguous and are capable of two meanings, it would clearly be the duty of the Courts to assign them such meaning as would give effect to the Act and as would be consistent with the object of the Legislature in passing the Act. In the present case the challenge which is prohibited is in terms confined only to the ground that one Act rather than the other should have been applied, and as I have already mentioned the challenge before us cannot in our opinion fall within this prohibition. We have, however, carefully considered the question as to whether this view of the proviso would make the proviso altogether infructuous, and we are satisfied that it would not be so. We may in this connection incidentally refer to s. 13 of the Act. This section provides for the cases in which the landlord may recover possession of the property let out to the tenant. Amongst these cases is sub-s. (1)(g) where the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held. With regard to the class of cases falling under s. 13(1)(g), sub-s. (2) has laid down that no decree for eviction shall be passed on the ground mentioned in cl. (g) if the Court is satisfied that having regard to all the circumstances of the case greater hardship would be caused by passing the decree than by refusing to pass it. Now, it is quite possible to take the view that the provisions of this sub-section can be retrospectively applied, and if they are so applied to a suit filed before the Act came into force, the party aggrieved may not be able to challenge successfully the decree passed under this sub-section. In other words, this sub-section gives an illustration of the retrospective operation of one provision of the Act which cannot be challenged.

    In this connection we may point out that the anomaly which apparently results from refusing the tenant the benefit of s. 12(3) in cases filed before the Act came into force arises not by reason of the interpretation we are putting upon the new proviso to s. 51, but it arises from the manner in which s. 12, sub-ss. (2) and (3), have been enacted by the Legislature. When the Legislature enacted the proviso to s. 50, it was clearly intended to make the provisions of the Act applicable retrospectively. But in enacting this proviso it was not realised that there may be some sections in the Act which in terms were so clearly prospective that Courts would find it impossible to apply those sections to suits covered by the proviso to s. 50. We have, therefore, to consider the position that whereas the proviso to s. 50 makes the provisions of the Act retrospective in a general way, s. 12, sub-ss. (2) and (3) in terms are prospective so that there can be no escape from the conclusion that despite the proviso to s. 50, s. 12, sub-ss. (2) and (3), must be prospectively applied and in that sense must be treated as an exception to the provisions of the said proviso. When the Legislature introduced the new proviso they must have been aware of this anomaly because this anomaly was pointed out in the judgment of the Full Bench in Nilkanth Ramchandra v. Rasiklal. Even so, it was not thought necessary by the Legislature to amend s. 12, sub-ss. (2) and (3), and the only action they took in the light of the said Full Bench judgment was to prevent a challenge to the decrees passed within the material period only on the ground that one Rent Act rather than the other should have been applied. We must, therefore, hold that the lower appellate Court was wrong in applying the provisions of s. 12(3) to the suit which had been filed before the Act came into force.

    There is one more point which may incidentally be considered and that is, whether the tenant is entitled to the protection of s. 114 of the Transfer of Property Act. This section gives jurisdiction to the Court to grant relief to the tenant against forfeiture for non-payment of rent and there can be no doubt that this power can be exercised even by the appellate Court. The difficulty in exercising this power in the present case, however, arises from the fact that it is not shown that forfeiture has been incurred as required by s. 111(g) of the Transfer of Property Act. The word ‘forfeiture’ used in s. 114 has a technical meaning which must be ascertained by reference to s. 111(g) of the said Act. Forfeiture in this technical sense is incurred in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter, and even in such a case the lessor has to give notice in writing to the lessee of his intention to determine the lease. The lease between the parties in the present case is not on the record and it is impossible to say that the requirements of s. 111(g) of the Transfer of Property Act have been satisfied. No plea under s. 114 was made in the Courts below and it is obviously difficult to entertain this plea for the first time in second appeal. The plea clearly raises a mixed question of fact and law which we cannot decide in the absence of adequate material on the record.

    The result is the appeal succeeds and the decree passed by the lower appellate Court must be set aside. At our instance Mr. Chandrachud has, however, agreed not to execute the decree for six months from to-day. We would, therefore, decree the plaintiff's suit and direct that the defendant should deliver vacant possession of the premises to the plaintiff on or before October 1, 1952. During the time that the tenant would be in possession of the suit premises hereafter he will have to pay to the plaintiff by way of damages or compensation the same amount that he was paying before by way of rent. In the circumstances of this case we direct that the parties should bear their own costs throughout.

    Appeal allowed.
    M.W.P
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    Bhagwant Rambhau Khese v. Ramchandra Keshao Pathak
    (Mar 13, 1952)