SULTAN SINGH Vs. GULAB SINGH

JUDGEMENT

(1.) THE revision arises out of an order passed by Muniff Hiranagar in Civil Suit No. 26 of 1980 on December 11, 1982 dismissing the application of the petitioner for amendment of the written statement and for framing of fresh issues in the lignt of the Notification No. Rev. (LB) 108/79 dated 29 -4 -1982 extending the provisions of the Jammu and Kashmir Houses and Shops Rent Control Act 1966 (hereinafter called the Act) to the Notified Area Committees. Hiranagar, whereby the property in dispute is situated. Respondent filed a suit for ejectment against the petitioner on August 5 - 1980 after termination of his tenancy under the provisions of the Transfer of property Act, when the Rent Act was not applicable in Hiranagar Town. During the pendency of the suit, when the case was fixed for final arguments, the provisions of the Act were extended by the above quoted Notification. The petitioner filed an application before the trial court on July 26 -1982 for the amendment of the written statement and framing of the issues in terms of the Act claiming the protection under Section 11 of the Act. The application was contested by the respondent. The learned trial court consequentially holding that the provisions of the Act not being retrospective in operation will have no effect on the present suit, which was filed before April 29 -1982, and dismissed the application of the petitioner. The order is, therefore challenged by the defendant/petitioner mainly on the ground that the order passed by the learned trial court is without jurisdiction in -as -much as it has been exceeded in is jurisdiction holding that the Act is not retroactive in operation, which travels against the Full Bench Division of this Court in Civil Revision No. 21 of 1975 (Thakur Dass Vs. Balkrishan) decided on May 3 -1974.

(2.) THE revision is contested by the respondent. The arguments were advanced by the respective counsel at length. Learned counsel for the petitioner placing his reliance right from the decision of their Lordships of the Supreme Com t reported in A 1 R 1961 S. C. 1067 (Ganga Dutt Murarka, Appellant Vs. Kartik Chandra Dass and others. Respondents) submitting that the tenant containing in possession after the enforcement of the Act is protected under the provisions being a statutory tenant from ejectment unless the landlord brings his suit for ejectment under one of the Clauses or any one of Section 11 of the Act. In this connection referring to the Full Bench Decision of this Court in Civil Revision No, 21 of 1973 (Supra), it is also pointed out that the protection granted to a tenant against eviction relying on the decision of the Supreme Court in A. I R. 1961 S. C. 1067 (supra), this court has held that the Act to that extent is retrospective in operation. To the Same effect reliance is also placed on A. I. R. 1961 S C. 1996 (Shah Bhajraj Kurerji Oil Mills and Ginning Factory, Appellant Vs. Subash Chandra Yograj Singh, Respondent) and A. I. R. 1967 Allahbad 214 (Shyam Sunder Lal, Appellant Vs. Shasnin Chind, Respondent) also a Full Bench decision submitted that the order impugned is liable to be set aside.

(3.) LEARNED counsel for the respondent placing his reliance on several authorities of this court on the point in controversy alleging that the Full Bench decision of this court in Thakur Dass case (Supra) was incidentally referred to a Full Bench, which requires reconsideration by referring the present revision to a larger Bench in the light of the authorities of the various decisions of the Honble Supreme Court and of the various High Courts. For the said purpose firstly he has placed his reliance on a Division Bench authority of this court reported in 1970 (1) J & K L R 54 (Mulk Raj V. Kapoor Chand) on the interpretation of section 34 of the Act. It is further added that the reading of section 35 also of the Act makes it specific that Legislature never intended to make the Act retrospective whenever it is extended to an area and specially when the Notification does not make any such reservation or provides that a particular provision of the Act shall apply retrospectively. He has also referred to A. I. R. 1953 S. C. 22 (Messre Hoosein Kasam Dada (India) Ltd. Appellant Vs. The State of Madhya Piadesh and others, respondents) AIR 1957 S. C. 540 (Gasikapati Veeraya, Petitioner V. N. Subiha Choudhary and others, Respondents), A I R. 1966 S. C. 1423 (Dayawatn and another, appellant Vs. Inderjit and others, Respondents) and A. I. R. 1968 S. C. 1336 (keshavlal Jethalal shdh, Appellant Vs. Mohan Lal Bhagwan Das and anr. Respondents) and also a decision of the Bombay High Court reported in A. I R 1977 Bombay 384 (Shripatrao Daji Saheb Glatge and another, Petitioners Vs The State of Mahrarashtra and another, Respondents), it is further submitted that a substantive rights cannot be taken away by a legislation. In the absence of any provision for applying the Act retrospectively, it cannot be interpreted so as to grant protection to the tenant in a pending suit with retrospective effect.