Shearer, J.:— This second appeal, which is by the defendant, arises out of a suit in ejectment. The defendant was for some years monthly tenants of certain business premises situated in the town of Bhagalpur. The tenancy was a monthly tenancy according to the Sambat year, and a notice to quit was served on the defendant on the 1st of May, 1943. This notice was not obeyed, and on the 18th of June, 1943, the suit out of which this appeal arises was instituted. Dr. Dwarka Nath Mitter, for the appellants, contends that the notice which was served on his clients was not a valid notice inasmuch as the date mentioned in it was the 1st Badi Jeth Sambat 2000, whereas under section 106 of the Transfer of Property Act the 15th Sudi Baisakh Sambat 2000 ought to have been the date. The notice, however, contained inter alia the following:—
“You are hereby informed to vacate the shop from the beginning of the 1st Badi Jeth Sambat 2000, and make it over to my client, and pay to my client the arrear rent with interest up to the month of Baisakh, Sambat 2000, otherwise on expiry of the month of Baisakh, Sambat 2000, your possession over the said shop will be treated as: wrongful and you will be liable to pay mesne profits at the rate of Rs. 2-8-0 per day from the 1st Jeth, sambat 2000, till the recovery of possession, and my client will institute suit in a court of proper jurisdiction to dispossess you and for recovery of arrear rent with interest and mesne profits and you will be liable to pay damages and costs.”
The rule, as I understand it, is that when the tenancy is a periodic tenancy, the landlord cannot permit a tenant to remain on in possession after a fresh period has begun and then call on him to vacate the premises. If he permits him to remain on after a fresh term has commenced, he must permit him to remain on until that term expires. The plaintiff, however, in this notice made it perfectly, clear to the defendant that he was to vacate the premises immediately on the expiry of the month of Baisakh, Sambat 2000. The notice, in my opinion, complied with the provisions contained in section 106 of the Transfer of Property Act and was a valid notice.
Dr. Dwarka Nath Mitter, for the appellants, contended that his clients were protected against ejectment by the Bihar House Bent Control Order, 1942. It is true that this order came into operation in the town of Bhagalpur before the suit was instituted. Unfortunately for the appellants, however, the Order as it stood originally did not apply to business premises. It was not until the 23rd of. December, 1943, that the Order was amended so as to bring business premises within its scope. Dr. Mitter suggested, somewhat faintly, that the amendment which was then made in the Order was made in order to remove an ambiguity and to make it plain that the Order had always been intended to apply to such premises. This contention is, however, Without any substance. In order to enable the amendment in the Order to be made, rule 81(2)(bb) of the Defence of India Rules had itself to be first amended. In other words, when the Bihar House Rent Control Order, 1942, was enacted, the Provincial Government had no power to legislate regarding business premises, and it is, therefore, quite impossible to say that the subsequent amendment made in the Order was made merely in order to remove an ambiguity. When the Bihar House Rent Control Order, 1942, came into operation, the defendant was thus a person whose tenancy by agreement had been determined by a valid notice to quit, who had in spite of that notice declined to vacate the premises and against whom, in consequence, a suit in ejectment had been instituted. In Ganeshdas Ramgopal v. Jamuna my learned brother and myself have very recently had occasion to consider whether such a person is a tenant within the meaning of that word as it occurs in section 13 of the Bihar House Rent Control Order, 1942, and have come to the conclusion that he is not. I do not consider it necessary to repeat again here the reasons which I gave for that decision. I should, however, notice a point which was taken by Dr. Dwarka Nath Mitter, for the appellant, and which was not taken by Mr. S.N Bhattacharyya who appeared for the appellant in the other case. Dr. Mitter said that the Bihar House Rent Control Order, 1942, was a piece of remedial legislation and suggested that there was no presumption that a remedial law operated only prospectively and did not also operate retrospectively. In Wharton's Law Lexicon remedial statutes are defined as those which are made to supply such defects, and abridge such superfluities in the Common Law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges, or from any other cause. It seems to me very doubtful if this particular Order can, properly speaking, be described as a remedial statute. It is, for instance, not without significance that it does not come into operation in a particular local area until it has been extended to that area by a notification. In any case, the question whether a statute, be it a remedial statute or not, operates retrospectively as well as prospectively, is a matter which must be determined by the language which has been used by the legislature. That is made clear, I think, in the judgment of Jessel M.R and Bowen L.J in the decision cited by Dr. Dwarka Nath Mitter—Quitter v. Mapleson. I am unable to find in the Bihar House Rent Control Order, 1942, any words leading or tending to lead to the conclusion that it was the intention of the legislature to take away from the plaintiff the right of action which had already accrued to her and on which she had instituted a suit before the Order applied to the class of premises of which the defendant was in occupation.
A cross-objection has been put in by the plaintiff against the decision of the lower appellate court reducing the amount awarded as damages from Rs. 2-8-0 to Rs. 2 a day. Mr. Dutt, for the respondent, said that the onus was on the defendant to show that the amount claimed as damages was unreasonable, that no attempt was made to discharge the onus and that prima facie the amount claimed was not excessive. There is, I think, a certain amount of force in this contention. The amount of damages was, however, largely a question of fact and it would not, I think, be proper for this Court to interfere in second appeal. Moreover, it is possible that the defendants in retaining possession of the premises were not acting contumaciously inasmuch as they may have been under a bona fide impression that he were entitled to protection under the Bihar House Rent Control Order, 1942. In the result, then, I would dismiss the appeal and also the cross-objection, in each case with costs. Dr. Mitter asked us to permit his clients to remain in possession of the premises for a further period of at least six months. But it would, I think, be wrong for us to make any such order having regard to the length of time which the defendants have already remained in possession after the service of notice to quit. It ought, I consider, to be left to the defendants to come to some arrangement with the plaintiff if they are anxious to retain possession of the premises.
Varma, J.:— I agree.
Appeal and Cross-objection dismissed.
H.R.K