- (1.) JUDGEMENT This is an application in revision under S.115 of the Civil P.C. filed by the plaintiff-applicant against the order of the Additional District Judge, Agra, dated 23rd April, 1977, rejecting the plaintiff-applicants review application.
(2.) THE plaintiff-applicant filed a suit for recovery of arrears of rent and ejectment against the defendant-opposite party in the court of the Munsif. In Oct. 1972 the suit was transferred to the file of the Judge, Small Cause Court in view of S.9 of the Civil Laws (Amendment) Act, 1972. The Judge, Small Cause Court" dismissed the plaintiffs suit for the recovery of arrears of rent but it decreed the suit for defendants ejectment. Both the parties, the plaintiff as well as the defendant, filed revision before the District Judge. On 22nd March, 1976, the Additional District Judge allowed both the revisions and set aside the judgement and decree of the Judge, Small Clause Court, and remanded the suit to the Additional Munsif, before whom the plaintiffs suit had initially been filed, with a direction that the suit may be tried afresh. The remand order was passed on the findings that the Judge, Small Cause Court, had no jurisdiction to try the suit as it was originally filed before the Munsif on the regular side. The plaintiff did not challenge the order of remand in revision before the High Court. But the defendant opposite party filed two revisions under S.115 of the Civil P.C. before the High Court against the order of remand but when the revisions came up for hearing the defendant got the same dismissed as not pressed. On 20-9-1976, the plaintiff-applicant filed a review application before the Additional District Judge under Ss.114 and 151 read with O.47, R.1 of the Civil P.C. for review of his judgement dated 22nd March, 1978, Along with the review application, the plaintiff filed an application under S.5 of the Limitation Act for condoning the delay in filing the review application. The Additional District Judge rejected the plaintiffs application under S.5 of the Limitation Act as he refused to condone the delay; he further dismissed the review application by his order dated 23rd April, 1977. Before I deal with the contention raised on behalf of the applicant, I consider it necessary to refer to the various legislative amendments which were made from time to time. U.P. Act XIII of 1972 was enforced with effect from 15th July, 1972. S.20(6) of the said Act amended entry 4 of the Second Sch. to the Provincial Small Cause Courts Act, 1887. Shortly thereafter the U.P. Civil Laws (Amendment) Act, 1972 (U.P. Act 37 of 1972) was enforced on 20th Sept. 1972. This amending Act deleted S.20(6) of U.P. Act XIII of 1972 and by S.9 the Judge, Small Cause Court, was invested with power to hear and decide a suit filed for recovery of arrears of rent and ejectment In pursuance of S.9 of the U.P. Civil Laws Amendment Act, 1972, the plaintiff-applicants suit was transferred from the court of the III Additional Munsif to the Judge, Small Cause Court. As already noted the suit for arrears of rent was dismissed but it was decreed in so far as the defendants ejectment was concerned. A learned Single Judge of this Court, however, held that if a suit was filed in the Civil Court on the regular side for recovery of rent and ejectment, the same could not be transferred to the Judge, Small Cause Court under S.9 of the U.P. Civil Laws Amendment Act, 1972, and the decree if any passed by the Judge, Small Cause Court, on transfer of a suit was without jurisdiction. The Additional District Judge placing reliance on the said judgement set aside the decree of the trial court and remanded the suit to the Munsifs court for re-hearing. Meanwhile the legislature intervened and enacted U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, U.P. Act 28 of 1976. S.26 of the 1976 Act contained transitory provision. Sub-Sec. (6) of S.26 provided that S.9 of the U.P. Civil Laws (Amendment) Act, 1972, shall apply and shall be deemed always to have applied in relation to suits of the nature referred to therein which before the commencement of that Act had been transferred to a competent court and were pending immediately before the date of commencement of that Act in such transferee court as they apply in relation to suits which were pending in the court in which they were instituted. The proviso to the Sub-Section further laid down that any suit decided by the transferee court between the commencement of the U.P. Civil Laws Amendment Act, 1972, and the commencement of U.P. Act 28 of 1976, on the assumption that S.9 of the Civil Laws Amendment Act, 1972, did not apply to the said suit shall be deemed to have been validly decided as if the said Section did not apply to such suits. The provisions contained in S.26(6) were retrospective in nature and validated the decree which may have been passed by the Judge, Small Cause Court in a suit which may have been instituted in the Munsifs court and later on transferred to the Judge, Small Cause Court in pursuance of S.9 of the U.P. Civil Laws Amendment Act, 1972. The legislature enacted this provision in order to meet the difficulty which had arisen on account of the judgement of the learned Single Judge of this Court. In view of the aforesaid retrospective legislation the plaintiff-applicant filed an application for review of the order of the Additional District Judge dated 22nd March, 1976. The Additional District Judge, however, dismissed the same on the ground already noted.
(3.) LEARNED counsel for the applicant urged that since the legislature had enacted a provision with retrospective effect to validate the decree of the Judge, Small Cause Court, the Additional District Judge should have given effect to the legislative intent by recalling his order of remand. He refused to exercise the jurisdiction vested in him by law in dismissing the review application. There is no dispute that the provisions of S.26(6) are retrospective and consequently the amendment must be deemed to have been enforced on all material dates. The effect of the deeming clause contained in the said provision was that the Judge, Small Cause Court, had jurisdiction at all material times to hear and decide the plaintiffs suit. The statutory fiction created by S.26(6) validated the decree of the Judge, Small Cause Court, and cured the defect, if any. It is well settled that whenever legislature enacts law with retrospective effect, the legislative intent must be given effect by the courts. A case decided or a judgement given in accordance with the law as it stood on the date of decision is open to review on the ground of subsequent change of law, provided a deeming provision is contained in the amending law. The deeming provision of law under S.26(6) made the said provision effective, and operative with effect from 20th Sept. 1972, namely, the date when S.9 of the U.P. Civil Laws Amendment Act came into force. By the said amendment a legal fiction was created, consequently the amended provision was fully effective and operative at all material time with effect from 20th Sept. 1972. It was, therefore, open to the plaintiff-applicant to apply for the review of the judgement which had proceeded on the assumption that the Judge, Small Cause Court, had no jurisdiction to try the suit. A review application would be maintainable as due to the retrospective change of law there would be an error apparent on the face of the record; the error would be that the law that was applied by the Additional District Judge in setting aside the decree of the Judge, Small Cause Court, was not the law which was applicable.;