BHARGAVA, J. - (1.) THIS is a second appeal by the defendant against the judgment and decree of the learned Senior Civil Judge, Jaipur city dated 8th October, 1960 confirming the decree of the Additional Munsiff, Jaipur in a suit for ejectment.
(2.) THE appellant was the tenant of the premises mentioned in paragraph (1) of the plaint on a monthly rental of Rs. 45/- plus Rs. 3/8/-and Rs. 2/-p. m. for electricity and water charge. THE present suit for ejectment and arrears of rent was filed against him on 30th August, 1956 on several grounds namely of subletting, plaintiff's personal necessity and default in payment of rent by the defendant. It was alleged that the defendant was an habitual defaulter and had committed more than three defaults in the payment of rent for two months, on several occasions between 5th November, 1952 and 5th December, 1955. The defendant contested the suit and while admitting the tenancy denied the grounds on which the ejectment from the premises was sought. It was pleaded that he had not made defaults in the payment of rent but had been making regular payments, the last payment of rent being made on 20th September, 1955. Thereafter, once on 28th November, 1955 and again on 19th January, 1956, he sent the amount of rent by money order to the plaintiff. Besides as he deposited the whole amount of rent along with interest, costs etc. determined by the court under sec. 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 hereinafter called the Act) the suit for ejectment on the ground set forth in sec. 13 (i) (a) was liable to be dismissed despite the alleged defaults on three occasions within the period of 18 months. Reliance was placed on the Full Bench decision of this Court in Daulat Ram and other Vs. Lakhu Mal and another, (1) wherein it was held that: - "the second proviso to s. 13 (1) (a) does not prevail over sec. (4) but on the other hand, sec. 13 (4) is applicable when the tenant does not take advantage of the first proviso or is prevented from taking advantage thereof owing to defaults mentioned in the second proviso. In other words, the tenant is entitled to the protection provided by sec. 13 (4) even if he has made the defaults mentioned in the second proviso to sec. 13 (1) as it stood prior to Amendment Act No. XXIV of 1958" It may be mentioned that the present suit was filed before the amendment of sec. 13 by Act No. XXIV of 1958. As the plaintiff during the pendencey of the suit gave up other grounds for ejectment namely of his personal necessity and that of sub-letting by the defendant the only point which now needs consideration is whether in view of the payment in full of the amount determined by the court under sec. 13 (3) of the Act he is entitled to the protection afforded by this provision and the plaintiff's suit is liable to be dismissed. Learned counsel for the appellant contends that as soon as he complied with the order of the court made under sec. 13 (4) there was no option for the court but to dismiss the suit for ejectment. It was also contended that in the circumstances of the present case the appellant was entitled to relief against forfeiture for non-payment of rent under the provisions of sec. 114 of the Transfer of Property Act. On the other hand it is urged on behalf of the respondent that it is not open to the appellant to dispute that he was not a defaulter inasmuch as both in his written statement and statement before the court he admitted that he had not paid rent since 5th April, 1955. He had, therefore committed more than three defaults in the payment of two months' rent during the period of 18 months. It is next urged that provisions of sec. 13 (4) were not applicable in the present case as the appellant had contested the suit on the ground that the notice determining the tenancy was not a valid one and that the premises were not sublet or required for the personal use of the plaintiff. Reliance is placed on the following observations in Sha-mbhoo Ram and another Vs. Mangal Singh, (2 ). "therefore, as soon as the tenant contests the suit on any ground whatsoever except as to the matter of arithmetical calculation of the amount of rent due up to date or interest or costs, he cannot claim the benefit of sub-sec. (4 ). The suit then becomes contested and has to be disposed of in such manner as the court deems fit according to the general law. " and on an unreported decision of a learned Single Judge of this Court in Civil Regular Second Appeal No. 69 of 1958 (Vishambharlal Vs. Mohanlal) decided on 10th March, 1960, wherein a suit for ejectment the defendant resisted the suit and raised the plea that he had given a post dated cheque to the plaintiff and thereby had made a valid tender for the arrears of rent. He also pleaded that the tenancy had not been terminated by a valid notice of ejectment in accordance with the provisions of sec. 106 of the Transfer of Property Act. In the course of this judgment it was observed that: - "the only question which then remains to be decided is whether the present case falls within the mischief of sub-sec (5) of sec. 13. As to this I have no doubt whatsoever that it does; inasmch as the defendant filed a written statement in which he raised several points of contest which have already been set out above and therefore, this was a case of which it can not be said that the defendant had not raised a contest therein, That being so it must follow that he was not en titled to the benefit of sub-sec (4) of sec. 13 and any deposit made by him under that provision cannot afford him a valid defence against a decree for ejectment. " Another ground urged is that by Act No. XXIV of 1958, a proviso has been added under sec. 13 (4) according to which the tenant is not entitled to the benefit of sub-sec. 4, if he has made default in the payment or tender of the amount or rent due from him for any two months on three occasions within a period of eighteen months. Learned counsel urges that this proviso is retrospective in its operation inasmuch as this proviso was added to remove doubts created by the conflicting decisions of this court with regard to the applicability of sub-sec. 4 incase second proviso to sec. 13 (1) applied to the case. It is urged that the amendment introduced by adding proviso to sub- sec. 4 only declares the law as it existed before the amendment and as such it should be held to be retrospective and applicable even to cases which were filed before the amendment. It is next urged that even during the pendency of the appeal which is a continuation of the suit the court can take notice of the changes made in the law and can give effect to it. Reliance was placed on a Bench decision of this Court in D. B. Civil First appeal No. 39 of 1956 ( H. H. Maharaja Kami Singh and others Vs. Shri Pyarelal Gupta ), decided on 16th February, 1960 to which I was a party. As regards the appellant's claim for relief on the ground of forfeiture for nonpayment of rent it is urged that sec. 114 of the Transfer of property Act has no application where the tenancy it determined by a notice as provided in sec. 106 of the Transfer of Property Act. Reliance is placed on Jagannath Prasad Vs. Suraj Lal, (3 ). Before I take up the question whether the proviso added to Sub-sec. 4 of sec. 13 by Act No. XXIV of 1958 is retrospective, or not and can be applied in the present case which was instituted before this amendment it is proper to determine whether the provisions of sub-sec. 5 are at all attracted in the present case. Sub-sec. 4 applies where the suit for eviction is instituted on the ground set forth in clause (a) of sub-sec. 1 of sec. 13 i. e. , where the tenant has neither paid or tendered the amount of rent due for any two months. If the said suit is filed on this ground alone the court is empowered under the said sub-section to fix the amount of arrears along with interest thereon and costs of the suit on the first day of the hearing of the suit and direct the tenant to deposit the said amount on or before the date fixed by it. In sub-sec. (5) there is a further provision for the same type of suit when the tenant expresses his intention to contest the same. The words 'such a suit' occurring in sub-sec. 4. which again means a suit based on the ground set forth in clause (a) of sub-sec. 1 of sec. 14 sub-sec. 4 and 5 are to be read together and sub-sec. 5 is not independent of sub-sec. 4 because in sub-sec. 5 there is nothing to indicate the type of suit it is dealing with. If sub-sec. 5 were to be read independently of sub-sec. 4 as the learned counsel for the respondent desires it to be read, the provisions of sub-sec. 4 would be rendered nugatory as it would be very easy for the landlord to found his claim on other grounds mentioned under sec. 13 besides the one falling under sub-clause (a) in order that the tenant may be forced to contest the suit. To read sub-sec. 5 independently of sub-sec. 4 and to hold that its application is not confined to suits based on the ground set forth in clause (a) of sub-sec. 1 of sec. 13 but to all cases in which the tenant contests the suit based on any ground under sec. 13 (1) would lead to absurdity and would completely deprive the tenants of the protection which was intended to be given to them under sub-sec. 4. In my opinion the contest referred to in bub-sec. 5 is only that which relates to tenants' liability for the payment of the arrears of rent land not to contest with regard to the other grounds set forth by the plaintiff for the ejectment of the tenant. In Shambhoo Ram's case (2) suit was based on the ground set forth in clause (a) of sub-sec. 1 of sec. 13 and the tenant denied his liability to pay the rent at the enhanced rate. It was therefore a case to which sub-sec. 5 applied and the above mentioned observations on which reliance is placed on behalf of the respondent should be read in that context. These observations do not mean that the contest can be on any ground not falling within clause (a) of sub-sec. 1 of sec. 13. This becomes clear from observations that "if the contest is on any ground whatsoever except as to the matter of arithmetical calculation of the amount of rent due up to date or interest or costs, he cannot claim the benefit of I sub-sec. 4. " It therefore, follows that the contest which has been referred to, means the contest about the amount of rent. Similarly in the unreported case of Vishambharlal Vs. Mohanlal, the tenant had raised the plea that he had given a post-dated cheque to the plaintiff and had made a valid tender for the arrears of rent and had not admitted his liability for the amount of rent. It was in those circumstances that it was held that the tenant had contested the suit and the case fell within the mischief of sub-sec. 5 of sec. 13. In this connection reference may be made to Moti Ram Vs. Parma Nand, (4) wherein it was observed that: - "sec. 13 (4) affords protection to a tenant in those cases, where he does not raise a contest, except as to arithmetical calculations about the amount of rent. If a tenant denies his liability to pay rent and joins issue on that matter and subsequently fails, it is not open to him to claim protection under sec. 13 (4 ). " Apart from any consideration of absurdity or hardship, it is clear upon the language of sub-sec. 5 itself that it refers to suits contemplated by sub-sec. 4 and that the contest should be with regard to the liability to pay rent and not in respect of any other ground set forth in the plaint i. e. under sec. 13 (1) (b) (h) for the eviction of the tenant. In my opinion sub-sec. 5 did not apply in the present case so as to deprive the appellant of the benefit under sub-sec. 4 of sec. 13. As the appellant complied with the order of the court and deposited the whole amount within time specified by the court he was entitled to ask the court to dismiss the suit. Whether Act No. XXIV of 1958 is declaratory and retrospective in operation, is now to be determined. It is not necessary to state the general principles of legal interpretation of statutes with regard to their retrospective operation because as stated in Statute Law by Craies that: - "perhaps no rule of construction is more firmly established than this that a retrospective operation is not to be given to a statute so to impair an existing right or obligation otherwise than as regards matter of procedure, unless that effect can not be avoided without doing violenceto the language of the enactment. If the enactments expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. " The presumption that statutes are not to operate retrospectively, however, cannot be made applicable in construing statutes which are declaratory in nature. As we look at Act No. XXIV of 1958, we find that it nowhere says that it declares the law as it was on the date of its commencement. By this Act both the provisos under sec. 13 (1) (a) are omitted and under sec. 13 (4) the following proviso was added namely: - ''provided that a tenant shall not be entitled to the benefit of protection against eviction provided by this sub-section if he has made default in the payment or tender of the amount of rent due from him for any two months on three occasions within a period of eighteen months. " The language of the new proviso clearly indicates that it was to apply in future and was not intended to apply to the past transactions. The words 'shall not be entitled' used in the proviso clearly point out that it was not intended to have any retrospective operation. If the Legislature intended that the proviso should apply retrospectively, it could have been expressed in a clear and positive language. The language used in the proviso does not indicate the intention of the Legislature that it was to apply retrospectively. In Sithies Vs. National Association of Operative Blasterers (5) where the Act of the Parliament contained the words "an action against the trade union. . . . . . . . . shall not be entertained," it was held that: - "where vested rights have already accrued, and legislation is passed which uses words expressive of futurity, such as 'shall not', which prima facie would appear to be meant to be applicable to future cases, it is not to be construed retrospectively so as to affect those vested rights, unless terms are used which clearly compel the Court to give it that construction. This is only to impute common sense to the Legislature; any reasonable person would say that clear terms ought to be used, if it is intended to divest a vested right. '' There is no preamble to the Act and its title only shows that it was an amending Act and not a declaratory one. Learned counsel referred to the statements of objects and reasons for which this law was enacted. Although the statements of objects and reasons are not admissible in aid to the construction of the statute yet they can be referred to ascertain the conditions prevailing at the time when Act No. XXIV of 1958 was introduced. However, it appears from the statements of objects and reasons that it was with a view to set at rest the conflict of decisions and removing discrepancies pointed out by the courts that the Rajasthan Premises (Control of Rent and Eviction ) Act, was proposed to be suitably amended by Act No. XXIV of 1958. Even from these statements of objects and reasons it does not appear that the Act was intended to be applied retrospectively. It is only an amending Act and the language of the new proviso also shows that it was to apply in future. Therefore, there is no force in the contention that the Act is declaratory and should apply retrospectively, to these proceedings. In this connection learned counsel pressed into service a bench decision of this Court H. H. Maharaja Karni Singh Vs. Shri Pyarelal Gupta mentioned above, and urged that the appellate court can take notice of the changes made in the law and can give effect to them. Learned counsel suggests that as the proviso under sec. 13 (4) is now in force this court should take notice of it and give effect to it in the present case. The case referred to by the learned counsel is clearly distinguishable. There at the time of the commencement of the action for ejectment the law was applicable to cinema buildings, but during the pendency of the appeal the law was amended and the cinema buildings were taken out of the mischief of the Rajasthan Premises (Control of Rent and Eviction) Act. The trial court dismissed the suit on the ground that the plaintiff failed to satisfy the ground for ejectment mentioned in sec. 13 of the Act. But at the time of the hearing of the appeal it was pointed out that as the law had been amended and the Act no longer applied to cinema buildings, relief could be given to the plaintiff. It was under these circumstances that relief was granted to the plaintiff and the suit was decreed in appeal. It was clearly pointed out in that case that no rights had accrued to the defendant and the amendment did not take away any rights. There was a certain ban on the rights of the landholders to eject their tenants, imposed by sec. 13 of the Act which on the date of the hearing of the appeal had been removed and therefore, relief could be granted to the plaintiff. In the present case the appellant in compliance with the order of the Court under sec. 13 (4) deposited the amount and the suit was liable to be dismissed on that ground. On depositing the amount determined by the Court, the appellant acquired a right to remain in possession of the premises and no subsequent change in the law unless it had retrospective operation, could divest him of that right on the ground of default in payment of rent. That case too, therefore, does not help the respondent and the general rule that the amendment would not operate retrospectively would apply even though the proceedings may be pending before the appellate court unless of course it is expressly made retrospective or its retrospective operation follows as a matter of necessary implication - ( See Motiram Vs. Suraj Bhan (6) ). This appeal is, therefore, allowed, judgment and decrees of the lower courts are set aside and the plaintiff's suit for ejectment is dismissed. Appellant will get his costs of all the courts from the respondent. Learned counsel prays for leave to appeal to a Division Bench. Leave is granted. . ;