The Judgment of the Court was delivered by

K.S Sidhu, J.:— The only question, though a crucial one, which falls for determination in this petition of revision is whether the rights and liabilities of the landlord and tenant in a suit for eviction instituted, under section 13, Rajas-than Premises (Control of Rent and Eviction), Act, 1950, (hereafter called the Act), before the amendment of the Act by Rajasthan Ordinance No. 26 of 1975, since replaced by the Rajasthan Amending Act No. 14 of 1976 are governed by section 13, as it stood before the amendment or by the amendments enacted during the pendency of the suit. It has arisen in the following circumstances.

2. The landlord, Firozibai brought a suit against Jagdish Prasad and Ram Bharoselal, her tenants, for a decree for eviction from a shop on the ground inter alia, that they had neither paid nor tendered the amount of rent due from them for six months. On April 5, 1973, which appears to have been the first day of hearing in the suit, the tenants deposited in the court a sum of Rs. 325/- consisting of arrears of rent, Rs. 275/- from May 2, 1972 to April 1, 1973, calculated at the rate of Rs. 25/- per mensem, and Rs. 50/-, towards costs and interest on the amount of aforesaid arrears. The tenants continued to deposit or pay the rent regularly month by month, at the rate of Rs. 25/- per mensem till June 1, 1976. The rent for the month from June 2, 1976 to July 1, 1976, which was required to be deposited or paid by July 16, 1976, was admittedly not deposited till August 12, 1976. The landlord made an application, dated, August 27, 1976, for an order striking out the defence against eviction in accordance with the provisions of section 13 of the Act. The tenants contended the said application and pleaded that they had tendered the rent to the landlord and that it was only on her refusal that they had made the deposit in the court on August 12, 1976. It appears that, during arguments in the courts below, an additional plea was raised on behalf of the tenants to the effect that, as on April 5, 1973, when they made the deposit of Rs. 325/- in the court, a sum of Rs. 275/- as arrears of rent and Rs. 9/- as interest thereon, in all Rs. 284/- only were due from them and that thus an amount of Rs. 41/- had all along been lying in excess with the landlord who could quite conveniently appropriate therefrom a sum of Rs. 25/- towards rent for the period from June 2 to July 1, 1976. By its judgment, dated. October 10, 1977, the trial court rejected the pleas of the tenants, allowed the landlord's application dated, August 27, 1976, and consequently ordered the defence against eviction to be struck out The tenant's appeal from that order has been dismissed by the learned Additional District Judge, No. 2, Dholpur, on December, 1980.

3. Aggrieved by the order of the appellate court which has affirmed the order of the trial court striking out the tenants' defence against eviction, the tenants have filed the present petition of revision to get the order reversed.

4. Notice of motion of this petition was seived on the landlord, Mr. J.S Rastogi, Advocate, entered appearance on her behalf.

5. After hearing both sides and giving the matter my careful consideration, I am in agreement with the courts below that once the tenants had deposited, suo motu or otherwise, the amount of Rs. 50/- towards costs and interest on April 5, 1973, they could not be heard nearly four years later telling the court for the first time in reply to the landlord's application dated, August 27, 1976, for an order striking out their defence, that the defence may not be struck out because the amount which they had deposited towards costs way not payable in law and therefore should be adjusted against rent payable for the month from June 2 to July 1, 1976. Whether costs were payable in law or not, the fact remains that the tenants deposited the amount in question towards costs and the landlord received the payment towards costs. There was thus no amount left with the landlord in the tenants' account as on & from June 2, 1976, when the tenancy month, for which the default occurred, commenced, to August 12, 1976, when the tenants made the deposit in the court towards the rent for the said month. In the circumstances the plea that the tenants had deposited in the court, in April 1973. the rent for the month of June, 1976 three years in advance, was rightly rejected by the courts below as a wholly artificial plea.

6. Mr. B.P Agrawal, learned counsel for the tenants then argued that the tenant's defence against eviction cannot be validly struck out under section 13(5) of the Act, as it stands now after the amendments enacted during the pendency of the suit, because, as he syllogiced, section 13(5) cannot come into operation without a prior determination of rent by the court under section 13(3) and there was no such prior determination by the court in this case This argument in so far as it goes, is not open to question. A plain reading of the provisions of sub-sections 3, 4 and 5 of section 13 of the Act, as amended during the pendency of the suit, would at once show that the order under sub-section 5. striking out the defence against eviction could only be made in a case in which the court had first provisionally determined under sub-section 3, the amount of rent to be deposited in the court or paid to the landlord by the tenant, and, while making such determination, had also indicated its decision regarding the rate of rent if the rate claimed by the landlord was disputed by the tenant. There was no question of any provisional determination of the arrears of rent and the rate of rent under sub-section 3 of section 13 of the Act in the instant case for this sub section was not even in existence at the material time. It was enacted more than two years after the initial deposit was made by the tenants. That being so, no order striking out the defence against eviction could legally be passed under section 13(5) of the Act in the facts of this case.

7. This will not, however, help the tenants at all for I am satisfied that the impugned order can be defended under the provisions of sub-sections 4, 5 and 6 of section 13 of the Act, as they existed prior to the amendment of this section by Rajasthan Ordinance No. 26 of 1975 (later replaced by Rajasthan Amending Act, No. 14 of 1976), read with the provisions of section 6, Rajasthan General Clauses Act (No. 8 of 1955). I may reproduce here the relevant provisions as under:—

“Sub sections 4, 5 and 6 of section 13 of the Act before they were superceded by the Rajasthan Ordinance No. 26 of 1975.

4. In a suit for eviction on the ground set forth in clause (a) of subsection (1) with or without any of the other grounds referred to in that subsection, the tenant shall, on the first day of hearing or on or before such date as the court may, on an application made to it, fix in this behalf, or within such time, not exceeding two months as may be extended by the court, depdsit in court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of six per cent per annum from the date when any such amount was payable upto the dale of deposit and shall thereafter continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at the rate.

5. If in any suit referred to in sub section (4) there is any dispute as to the amount of rent payable by the tenant?, the court shall determine, having regard to the provisions of the Act the amount to be deposited or paid to the landlord by the tenant, within fifteen days from the date of such order in accordance with the provisions of section (4).

6. If a tenant fails to deposit or pay any amount referred to in subsection (4) (or sub-sec. (5)) on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit.

8. Section 6, Rajasthan General Clauses Act, 1955.

Effect of repeal—(1) Where any Rajasthan law repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not—

(a) ………………

(b) ………………

(c) affect any right, privilage, obligation or liability, acquired, accrued or incurred under any enactment so replealed; or

(d) ………………

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilage, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such fine, penalty, forfeiture or punishment may be imposed as if the repealing law had not been passed.

(2) ……………”

9. It will be presently shown that, notwithstanding the repeal, by substitution, of the provisions of sub-sections 4, 5 and 6 of section 13 as reproduced above by the provisions of Rajasthan Ordinance No. 26 of 1975 (later replaced by Rajas-than Amending Act No. 14 of 1976), this suit which was already pending at the time of repeal was required, under law, to be continued as if the aforesaid Rajasthan Ordinance and the Amending Act had not been passed, and, therefore, the rights and liabilities of the parties arising out of the default in the payment of rent for the month from June 2, 1976 to July 1, 1976, must be determined on the basis of sub-sections 4, 5 and 6 of section 13 as they existed prior to the promulgation of the Rajasthan Ordinance. Before I take up detailed discussion in that behalf, it may be pointed out that authority is available for the view that if the impugned order can be justified on a provision of law other than the one under which it was passed by a lower court, the superior court may uphold it on the basis of the provisions of law which actually governs the case. References may be made in this connection to State of Punjab v. Mohar Siagh (1), in which the highest court in the land hold that if the conviction of the respondent under sec. 7 of the East Punjab Refugees (Ragistration of Land Claims) Act, 1948, as ordered by the trying Magistrate, was not sustainable, there would be no serious difficulty to alter the conviction to one under identical provisions of the East Punjab (Registration of Land Claims) Ordinance 1948, which had been repealed and replaced by the said Act, provided he could be prosecuted and punished under the said Ordinance after it had been repealed. It was held in the cited case on the basis of sec. 4 Punjab General Clauses Act which is peri material with sec 6, Rajasthan General Clauses Act, that he could be prosecuted and punished under the Ordinance after its repeal and replacement by the aforementioned Act.

10. A combined reading of the provisions of sub-sections 4.5 and 6 of sec. 13 of the Act, as they existed prior to the amendments of 1975 and 1976, and which have been reproduced above, would show that if a tenant fails to deposit or pay the rent for any month by the fifteenth of the succeeding month, the court has no option but to strike out the defence and proceed on with the hearing of the suit. In other words, the tenant by committing a default in that behalf incurs a liability of his defence against eviction being struck out manda torily under sub-section 6 reproduced above. The material point which there fore requires consideration is whether the defence of the tenants herein against their eviction could be validly struck out under sub-section 6 of section 13 after its repeal and replaucement by the Rajasthan Ordinance of 1975 and thereafter by the Rajasthan Amending Act of 1976.

11. In view of the provisions of section 6, Rajasthan General Clauses Act, 1955, reproduced earlier in this judgment, it is obvious that the tenants' defence against eviction in the present case could be struck out under sub section 6 of section 13. as it existed before the amendments enacted therein during the pendencv of the suit. The general rule embodied in section 6 appe ars to be that an amendment or repeal of an enactment during the pendency of a suit would not affect the rights and liabilities of the parties as they existed before the amendment or repeal unless a contrary intention can be gathered from the new enactment. Sub-section 4 of section 13, prior to its amendment, imposed liability enjoining that the tenant” ……shall thereafter continue to deposit or pay, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at the rate……“at which it was last paid or in the event of any dispute in that behalf, at the rate determined by the court under sub-section 5 of the then existing section 13. There was no dispute between the parties in the present case as to the rate at which rent was payable by the tenants. They admitted the rate to be Rs. 25/- per mensem and deposited the amount of arrears calculated at that rate on April 5, 1973. They had, by that token alone, incurred a liability under sub section 4 of Sec. 13 to “continue to deposit or pay month by month, by the fifteenth of each succeeding month” the rent at the rate of Rs. 25/- per mensem. The repeal of sub-section 4 of Sec. 13 and its replacement by a new provision during the pendency of the suit could not, to quote the language of Sec. 6(c), Rajasthan General Clauses Act, 1955, “affect any liablity incurred under any enactment so repealed” and it could not, as Sec. 6(c) further provides, “affect any…legal proceeding or remedy in respect of any such…liability…and any such legal proceeding or remedy may be…continued or enforced…as if the repealing law had not been passed.” These quotes from Sec. 6 leave no manner of doubt that, in the absence of anything to the contrary in the Rajasthan Ordinance No. 26 of 1975 or the Amending Act No. 14 of 1976 which repealed and replaced sub-sections 4, 5 and 6 of the then existing Sec. 13 by substantially altered provisions, the rights and liabilities of the parties as they existed at the time of repeal and re-enactment had to be enforced and the suit had to be continued as if the repealing law had not been passed. There is nothing in Ordinance No. 26 of 1975 or Amending Act No. 14 of 1976 which may be legitimately construed as destructive of old rights and liabilities acquired and incurred under Sec. 13(4), (5) and (6) of the Act prior to the supersession of these provisions by the amending and repealing enactments aforementioned.

12. In State Of Punjab v. Mohar Singh, Son Of Pratap Singh (Supra) the Supreme Court has provided a useful guideline as to the scope of enquiry under Sec. 6, General Clauses Act, in a case of repeal followed by fresh legislation on the same subject. Their Lordships pointed out that the court would have to look to the provisions of the new Act, merely to ascertain if the new Act manifests an intention to destroy old rights and liabilities. Their Lordships pointedly ruled out in this context any enquiry as to whether the new Act expressly saves old rights and liabilities or not. If we read the new sub-sections 3, 4 and 5 of Sec. 13 which have replaced the old sub-sections 4, 5 and 6, it will be discovered that the new sub-sections charge the court with a duty, no matter whether any of the parties have applied for it or not, to provisionally determine the amount of rent on the first date of hearing or on any other date which the court may fix in this behalf which shall not be more than three monts after the filing of the written statement and shall be before the framing of the issues. The liability of the tenant to deposit or pay month by month, the monthly rent is also conditioned on the prior determination of the rate of rent by the court under subsection 3. No order striking out the defence against eviction can be passed under sub-section 5 unless there is prior determination of the rate of rent by the court under sub-section 3 and failure of the tenant to deposit or pay the arrears of rent or monthly rent in accordance with the provisions of sub-sec. 4. In a suit like the present one which had been pending since 1972 and in which rent was being deposited or paid from month to month at the rate of Rs. 25/- per mensem till June 1, 1976, there was no question of any rent or rate of rent being determined by the court within the period specified in sub-section 3(new) for the stage for such determination had already passed. Now without such determination under sub-section 3, there cannot be any order striking out the defence under sub section 5. It is precisely for this reason that the legislature did not give retrospective effect to the new enactment so that it may not destroy the old rights and liabilities and affect pending suits. Any such retrospectivity would have created an absurd situation in that, while destroying old rights and liabilities, it would have left the field free for any unscruplous tenant to stop making deposits or payments of monthly rent, without running the risk of his defence against eviction being struck out, on the plea that there was not and there cannot any longer be, any determination of the rate of rent by the court under sub-section 3 of the new section 13 of the Act. It has already been mentioned in an earlier part of this judgment that Mr. Agarwal, learned counsel for the tenants, in the instant case, did raise some such argument on their behalf to the effect that the old sub-sections 4, 5 and 6 of section 13 of the Act were no longer in the statute book whom the order striking out the defence was passed and they could not therefore be available for sustaining that order, and further that since no rent had been determined by the court under sub-section 3(new) and none could be determined thereunder now, subsection 5(new) cannot come into operation at all, and therefore the order striking out the defence against eviction cannot be passed thereunder either.

13. Obviously, the legislature must have intended to avoid this absurdity and therefore refrained from giving any retrospective effect to the new subsections 3, 4 and 5 of section 13. It must have been aware of the provisions of section 6, Rajastban General Clauses Act, 1955, and therefore did not feel the necessity of inserting an express saving clause in the new enactment to keep the old rights and liabilities intact for their enforcement in pending suits

14. Reference may now be made to a few more cases supporting the view expressed above. In Piere Dunadh v. Imperor (2), Spons C.J who delivered the judgment of the court, held that on the principles ambodied in section 6(e) General Clauses Act, 1897, (the corresponding Rajasthan enactment is identical) the result of the repeal on cases pending at the time of repeal would be that they would continue as if the enactment had not been repealed. His Lordship of course added that this is subject to the qualification that the repealing enactment contains no provision or indication to the contrary.

15. The applicability and effect of the provisions of Sec. 6(e), General Clauses Act, 1897, regarding the institution of a prosecution in respect of the proceedings under the Income Tax Act, 1922, which were pending at the commencement of the Income Tax Act, 1961 was considered by the Supreme Court in T.S Baliah… v. T.S Rangachari…. (3). Head-note (e) is opposite for our purpose and may therefore be reproduced here in extenson—

‘The right of instituting prosecution in respect of proceedings which are pending at the commencement of the new Income Tax Act, (1961) is not taken away by the new Act. It is true that there is no express sub-clause of Sec. 297(2) of the 1961 Act which provides for the continuation of such proceedings. But Sec. 297(2) is not intended to be completely exhaustive and in regard to such matters as are not expressly saved by Sec 297(2) the provisions of Sec. 6(e) of the General Clauses Act will apply. A legal proceeding in respect of an offence committed under the 1922 Act therefore may be instituted even after the repeal of the 1922 Act by the 1961 Act and punishment may be imposed as if the repealing Act had not been passed.

Whenever there is a repeal of an enactment the consequences laid down in Sec. 6 of the General Clauses Act will follow unless as the section itself says, a different intention appears in the repealing statute. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the Court would undoubtedly have to look to the provisions of the new Act but only for the purpose of determining whether they indicate a different intention. The question is not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. Sec 6 of the General Clauses Act therefore will be applicable unless the new legislation manifests an intention in compatible with or contrary to the provisions of the section. Such incompetibility would have to be ascertained from a consideration of all the relevant provisions of the new statute and the mere absence of a saving clause is by itself not material.”

16. It will be seen that notwithstanding the fact that there was no express clause in Sec. 297 of the Income Tax Act, 1961, which deals with repeals and savings providing for a prosecution in respect of proceedings pending at the commencement of the Act of 1961, the Supreme Court held that a legal proceeding in respect of an offence committed under the 1922 Act may be instituted even after the repeal of the said Act and punishment may be imposed as if the Act of 1961 had not been passed. This conclusion was reached on the basis of Sec. 6 of the General Clauses Act, 1897 which as already stated is prei materia with Sec. 6 of the Rajasthan General Clauses Act, 1955.

17. No judgment of this court having a direct hearing on the precise question which arises for decision in the present case has been brought to my notice by counsel on either side. They however, cited some cases containing stray observations to the effect that the two sets of amendments, one consisting of sub-sec. 4, 5 and 6 of section 13 as enacted into that section by Amending Act No. 12 of 1965, and the second consisting of the provisions of sub-sections 3, 4 and 5 of section 13 which were introduced by Rajasthan Ordinance No. 26 of 1975 and Amending Act No. 14 of 1976 by repealing the earlier set, are both prospective in operation. For example, Kasliwal J. observed in Carona Sahu Co. Ltd. Bombay v. Vinod Kumar Goyal (4), that; “In my opinion, the above provisions (sub-sections 3, 4 and 5 of section 13 enacted by Rajasthan Ordinance No. 26 of 1975 and Amending Act No. 14 of 1976) only apply in a suit filed on or after coming into force of the Amending Ordinance”. Similar observations were made by Jagat Narayan C.J in Bhanwarlal v. Balkishan (5). in regard to the provisions of sub-sections 4, 5 and 6 of section 13 as enacted by Amending Act No. 12 of 1965.

18. Reference may also be made to an unreported judgment of Shinghal J. (as he then was) in S.B Civil, Regular Second Appeal No. 100 of 1966, Maha-beer Prasad v. Hiralal, decided on May 5, 1967. An uncertified copy, of this judgment was shown to me. Ignoring the typographical and clerical errors from which this copy suffers, one may spell out certain observations from this judgment to the effect that sines sub-section 5 of section 13, as it stood prior to its replacement by Amending Act No. 12 of 1965, had been replaced by the time the order striking out the defence was passed thereunder, the said order was defective. It will be seen that the case was remanded more by reason of the ambiguity from which the impugned order suffered rattier than by reason of the aforesaid defect. The ruling is not clear enough to serve as a precedent. In conclusion, I decide this controversy as stated below:—

(i) The impugned order striking out the defence against eviction cannot be sustained under sub-section 5 of section 13 of the Act as it emerged consequent on its amendment during the pendency of the present suit.

(ii) The rights and liabilities of the parties arising out of the default committed by the tenants in the payment of rent for the month in question in this suit which was already pending at the time of the aforesaid, amendments must be determined on the basis of the law as it stood before, the amendments. Sec 6 of the Rajasthan General Clauses Act, 1955, is applicable and leads us to this cpnclusion.

(iii) The impugned order can and must be upheld, under sub section 6 of section 13, as it stood before its amendment by the Rajasthan Ordinance No. 26 of 1975 and Amendidg Act No. 14 of 1976.

19. In view of the foregoing discussion and conclusions, this revision fails and is dismissed. The parties are however left to bear their own costs in this Court.