KHIMCHAND HARGOVANDAS SHAH Vs. GANCHI VALIBHAI GABABHAI
HIGH COURT OF GUJARAT
KHIMCHAND HARGOVANDAS SHAH
GANCHI VALIBHAI GAGABHAI
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(1.) THIS Second Appeal arises out of the suit filed by the Appellant for possession of a Ghabhan (building site) in the Village Masar Road. The suit was filed in the Court of the Civil Judge (Junior Division) Padra District Baroda and was No. 26 of 1958. After the suit was filed Part II of Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 (Bom. Act LVII of 1947) was applied to village Masar Road as when the Act was enacted it was not applied to this area. But subsequently on 23rd October 1958 the State Government extended Part II of the Act to the village Masar Road Both the Courts below have held that in view of the provisions of sec. 12 in Part II of the Act the suit was liable to be dismissed and thereupon dismissed the suit.
(2.) THE Appellate Court relied upon sec. 50 of the Act which reads as follows:-
50 THE Bombay Rent Restriction Act 1939 and the Bombay Rents Hotel Rates and Lodging House Rates (Control) Act 1944 are hereby repealed:- Provided that all suits and proceedings between a landlord and a tenant relating to the recovery of fixing of rent or possession of any premises to which the provisions of Part II apply and all suits and proceedings by a manager of a hotel or an owner of a lodging house against a lodger for the recovery of charges for or possession of the accommodation provided in a hotel or lodging house situate in an area to which Part III applies which are pending in any Court shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under this Act or shall be continued in such Courts as the case may be and all the provisions of this Act the rules made thereunder shall apply to all such suits and proceedings.
Nothing in this proviso 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 this Act had not been passed:-
Provided further that (a) every order passed or act done by the Controller under Part IV of the Bombay Rents Hotel Rates and Lodging House Rates (Control) Act 1944 and every order or act deemed to have been passed or done under that part shall be deemed to have been passed or done under this Act; and (b) all proceedings pending before the Controllers under Part IV of that Act shall be transferred to and continued before the Controllers appointed under this Act as if they were proceedings instituted before the Controllers under this Act.
By sec. 50 of Act LVII of 1947 the Bombay Rent Restriction Act 1939 and the Bombay Rents Hotel Rates and Lodging House Rates (Control) Act 1944 were repealed and the proviso was enacted for the transfer of certain suits and proceedings relating to the recovery and fixation of rent and Part II of Act LVII of 1947 was applied. THE expression to which the provisions of Part II apply would mean to which provisions of Part II applies when the Act is enacted. THE expression used is not to which the provisions of Part II may be extended or may be applied. Sec. 50 therefore does not apply to suits remaining in arrears when Part II of Act LVII of 1947 had been extended or applied i.e. sec. 50 would not apply to the present suit and therefore sec. 12 also which in Part II of the Act would not apply. Moreover as held by THEir Lordships of the Supreme Court in Chandrasinh Manibhai v. Surjit Lal Ladhamal Chhabda 53 B.L.R. p. 5132 sec. 12 is not retrospective. THErefore both the lower Courts were wrong in holding that sec. 12 was applicable to the facts of this case and deciding the case on that basis. THE Decree in appeal is therefore set aside. THE appellate Court is asked to decide the matter on the basis that sec 12 is not applicable. No order as to costs. Appeal allowed:-Suit remanded.;
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