- (1.) This appeal arises out of proceeding started under the Calcutta Thika Tenancy Act. The respondents filed a suit on 28th of November 1946, being Title Suit No. 310 of 1946, for ejectment of the appellants on the ground of default. On 3rd of December 1947 an exparte decree for eviction was passed. Decretal amounts were deposited and after that on 28th of February 1949 the Calcutta Thika Tenancy Act, 1949 received the assent of the Governor General and came to effect from that date. On the 7th December 1950 the tenant filed an application under Section 28 of the Calcutta Thika Tenancy Act and on such application Miscellaneous Case, being 14 of 1951, was started. The landlords filed objection. The application was allowed by the learned Munsif. On 14th of March 1953 the Calcutta Thika Tenancy (Amendment) Act (Act VI of 1953) came into effect retrospectively. By this Act Sections 28 and 29 were omitted, and it was provided that it would be deemed that those Sections were never in existence. Against the order allowing the application under Section 28 the landlords preferred an appeal. The appellate court held that the appeal was not competent and there was second appeal. This Court also held that the appeal was not competent but on the alternative application under Section 115 of the Code this Court granted an opportunity to the appellants to convert the appeal which was registered as a Miscellaneous Appeal into a Title Appeal. After remand the lower court heard the appeal on merits and held that because of the provisions of the Amendment Act of 1953 the tenant is entitled to no relief as envisaged under Section 28 of the Act, and in that view of his fining the application under Section 28 was dismissed. Being aggrieved the tenants have come up in this Court.
(2.) Mr. Sudhir Kumar Datta, learned Advocate appearing on behalf of the appellants, mainly urges that the Appellate Court was wrong to dismiss the application under Section 28 as the application under Section 28 was already disposed of by the learned Munsif at a time when the Amending Act was not introduced. It is true that it has been laid down that the Amending Act would have retrospective operation but even then Mr. Dutta submits that the Amending Act will have no effect on the present application under Section 28 which was filed and disposed of before the Amending Act. Sub-section (2) of the Amendment Act reads as follows: It shall into force immediately on the Calcutta Thika Tenancy (Amendment) Ordinance, 1952, ceasing to operate. Provided that the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by this Act, shall, subject to the provisions of Section 9 also apply and be deemed to have always applied to all suits, appeals and proceedings pending. (a) before any court, or (b) before the Controller, or (c) before a person deciding an appeal under Section 27 of the said Act, on the date of the commencement of the Calcutta Thika Tenancy (Amendment) Ordinance, 1952".
(3.) Mr. Dutta submits that there is no doubt that the provisions of the Amendment Act would apply to pending proceedings but the same cannot apply I the case of an application which has already been disposed of. In the present case the application under Section 28 was disposed of before the Amendment Act came into force and on that date the learned Munsif was sufficiently justified to pass an order for rescinding the decree. The order passed by the learned Munsif was correct at the time when it was passed and as such the learned appellate court cannot reverse the finding simply because during the pendency of the appeal the law has been changed. Mr. Dutta strongly relies upon a decision reported in (1) 1968(1) SC Reports 170 (Gopi Kanta Sen v. Abdul Gaffur & Ors). In this case the appellant instituted a suit against the first respondent and others in June 1948 for their ejectment. On February 28, 1949 the Calcutta Thika Tenancy Act came into force. The first respondent was not a thika tenant within the definition thereof given in the Act. The suit was decreed by theMunsif in March 1949. In November 1949 the appeal filed by the first respondent was dismissed by the first appellate court. He then filed a second appeal in the High Court which was heard in 1954. Before that the Calcutta Thika Tenancy (Amendment) Act, 1953 was passed. It was held "that the High Court. was wrong in holding that suits for the eviction of thika tenants became infructuous before civil courts after the omission of ss. 28 and 29. There being no longer any provision for transfer of pending suits and appeals, the court hearing the appeal would have to pass a decree for ejectment even if the defendant was a thika tenant after taking into account Section 3.;