- Bookmark
- Share
- CaseIQ
Rishindra Nath Sarkar v. Rai Saheb Sakti Bhusan Ray Opposite Party.
Factual and Procedural Background
The Petitioner (landlord) let premises to the Opposite Party, Rai Sahib Sakti Bhusan Roy, in March 1942 at a rent of Rs. 50 per month. The landlord applied under the House Rent Control Order, 1943 for fixing the rent and, by consent, the rent was fixed at Rs. 72 per month on 2 November 1943. On 19 January 1944 the Opposite Party sued for recovery of money paid as occupier's share of taxes, alleging that the sum of Rs. 72 included taxes. The trial Court dismissed that suit; the Full Bench of the Court of Small Causes decreed it. The matter was remanded by this Court and remained pending.
On 27 April 1949 the landlord applied to set aside the 2 November 1943 consent order purportedly under Section 151 CPC. The Additional Rent Controller dismissed the application. The Petitioner appealed to the Chief Judge of the Court of Small Causes, who dismissed the appeal. A review application dated 25 August 1949 before the Chief Judge was rejected. The present Rule was then obtained challenging that rejection.
Legal Issues Presented
- Whether this Court may, under Article 227 of the Constitution, exercise power to interfere with or revise an order (the consent order fixing rent) that was passed before the Constitution came into force.
- Whether Article 227 has retrospective effect so as to permit interference with rights or orders existing at the time the Constitution came into force.
Arguments of the Parties
Petitioner's Arguments
- Although this Court previously had no power to interfere with orders of the Chief Judge of the Court of Small Causes in matters of this nature, the Petitioner contended that the coming into force of the Constitution (and in particular Article 227) now confers such power on this Court and that the Court should exercise that power to set aside the 2 November 1943 consent order.
Opposite Party's Arguments
The opinion does not contain a detailed account of the Opposite Party's legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Indian Homoeopathic Medical Association… v. Kanailal Pal….* | That this Court has no powers of revising the orders passed by the Chief Judge of the Court of Small Causes in matters like these. | The Court relied on this prior holding to observe that, at the time the order was passed, this Court had no revisional power over such orders; this forms the background for assessing whether subsequent constitutional provisions can be applied retrospectively. |
| Delhi Cloth and General Mills Company, Limited v. Income-Tax Commissioner, Delhi | Principle that provisions dealing merely with procedure may be given retrospective effect unless textually inadmissible, but provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. | The Court applied this principle to conclude that Article 227 cannot be construed to disturb rights existing at the time the Constitution was passed unless there is express words or necessary intendment; the absence of such express provision in Article 227 meant it could not be used to upset the earlier order. |
| Colonial Sugar Refining Co. v. Irving | Authoritative enunciation of the general principle regarding retrospective effect of procedural provisions versus those affecting existing rights. | The Court cited this case (as cited in Delhi Cloth) as the foundational authority for the rule limiting retrospective application when rights already exist at the time of enactment; it supported the Court's conclusion that Article 227 lacked the necessary intendment to affect pre-existing rights. |
Court's Reasoning and Analysis
The Court began by noting the factual and procedural history and a prior decision that this Court previously lacked power to revise orders of the Chief Judge of the Court of Small Causes in such matters. The Petitioner argued that Article 227 of the Constitution now conferred power to interfere with the consent order passed in 1943.
The Court analysed whether Article 227 could be given retrospective effect to disturb an order that had been final when passed. Relying on the principle stated in the Judicial Committee's decision as quoted in Delhi Cloth and on Colonial Sugar Refining Co. v. Irving, the Court observed the established rule: procedural provisions may be given retrospective effect unless textually inadmissible, but provisions that touch a pre-existing right are not to be applied retrospectively absent express enactment or necessary intendment.
The Court examined Article 227 and found nothing in its terms that indicated an intendment to disturb rights existing at the time of the passing of the Constitution. There were no express words in Article 227 that would permit interference with a right in existence when the Constitution came into force. On that basis the Court concluded it could not apply Article 227 so as to affect the earlier order.
Holding and Implications
HOLDING: The Rule must be discharged with costs.
Implications: The direct effect is that the Petitioner's attempt to have this Court interfere with the 2 November 1943 consent order under Article 227 was rejected and the petition is dismissed with costs. The Court concluded that Article 227 does not, on its face, operate to disturb rights or orders in existence at the time the Constitution came into force; no broader retrospective application was found. The opinion does not purport to set a new precedent beyond applying established principles on retrospective effect to the facts of this case. A certificate to appeal to the Supreme Court was granted.
Sen, J.:— The facts giving rise to this Rule briefly are as follows. The Petitioner who is the landlord let out certain premises to the Opposite Party Rai Sahib Sakti Bhusan Roy some time in March, 1942, at a rental of Rs. 50 per month. An application was made under the House Rent Control Order, 1943, by the landlord for fixing the rent and by consent the rent was fixed at Rs. 72 per month on the 2nd of November, 1943. On the 19th of January, 1944, the Opposite Party instituted a suit for the recovery of money paid as occupier's share of taxes stating that the sum of Rs. 72 included taxes. The trial Court dismissed the suit. The Full Bench of the Court of Small Causes decreed it. The matter came up before this Court and the matter was remanded and is still pending. On the 27th of April, 1949, the landlord applied for setting aside the consent order which was passed on the 2nd of November, 1943, the application purporting to be made under Sec. 151 of the Code of Civil Procedure. The application was dismissed by the Additional Rent Controller. An appeal was taken to the Chief Judge of the Court of Small Causes and he dismissed the appeal. Then there was an application for review on the 25th of August, 1949, before the Chief Judge of the Court of Small Causes and that application was rejected. Against that order the present Rule has been obtained.
2. In our opinion this Rule must be discharged.
3. It has been held by a Division Bench of this Court in the case of Indian Homoeopathic Medical Association… v. Kanailal Pal….*(1) that this Court has no powers of revising the orders passed by the Chief Judge of the Court of Small Causes in matters like these. It is contended on behalf of the Petitioner that although this Court had no power to interfere before the Constitution came into force, it has now power to do so under Article 227 of the Constitution Act and we are invited to exercise that power. When the order was passed it was a final order with which this Court could not interfere. The Constitution Act was not in force then. Assuming that subsequently this Court has been given powers of interference, that would not in our opinion entitle this Court to interfere with an order which was passed at a time when such power of interference did not exist. In this connection I would refer to the decision of the Judicial Committee in the case of Delhi Cloth and General Mills Company, Limited v. Income-Tax Commissioner, Delhi(2). The passage in which this principle has been laid down appears at page 425. This is what their Lordships said:
“The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in The Colonial Sugar Refining Co. v. Irving(3), where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.”
4. There is nothing in Article 227 of the Constitution which would indicate that there was such an intendment as is sought to be attributed to Article 227. Certainly, there are no express words in the article which would give the Court the right to interfere with a right in existence at the time of the passing of the Constitution.
5. In these circumstances we are of opinion that this Rule must be discharged with costs.
6. Certificate to appeal to the Supreme Court is granted.
Chunder, J.:— I agree.
A.K.D.G
Alert