MODI, J - (1.) THIS second appeal arises out of a suit filed by Kanhaiyalal (since deceased) and his brother Vasudeo to eject the tenant defendant, who is appellant in this appeal.
(2.) THE suit was filed on 11-10-71 when the provisions of the Rajasthan Pre-mises (Control of Rent and Eviction) Act, 1950, were in force. Both the lower courts took the view that the land-lords required the demised premises bona fide and reasonably for their own occupation and for the occupation of their family members. THE courts below therefore decreed the suit for ejectment in favour of Vasudeo and the legal representatives of Kanhaiyalal who died during the pendency of the suit in trial court. THE tenant has preferred this second appeal. During the pendency of the second appeal in the Court, the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter referred to as the Act, was amended by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975 (Ordinance No. 26 of 1975), hereinafter called as the Amendment Ordinance of 1975, on 29-9-75. It is contended on behalf of the tenant-appellant that in view of sec. 14 (2) of the Act as amended by the Amendment Ordinance of 1975, the decree passed by the two lower courts was not proper and the same may be set aside. Sec. 13 (1) (h) of the Act which has not been amended by the Amendment Ordinance of 1975 runs as under - "sec. 13 - Eviction of tenant.- (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied - (a) to (g) xx xx xx (h) that the premises are required reasonbly and bonifies by the landlord - (i) for the use or occupation of himself or his family, or (ii) for the use or occupation of any person for whose benefit the premises are held, (iii) for a public purpose, or (iv) for a philanthropic use:" Sec. 14 of the Act as it stood before the Amendment Ordinance of 1975 ran as under:- "sec. 14 - Restriction on eviction - (1) xx xx (2) No decree for eviction on the ground set forth in clause (h) of sub-sec. (1) of sec. 13 shall be passed unless the Court is satisfied, after taking all the facts and circumstances into consideration, that it is reasonable to allow such eviction. " Sec. 10 of the Amendment Ordinance of 1975 has amended sec. 14 of the Act It provides that the existing sub-section (2) shall be renumbered as sub-sec. (1) thereof and after sub-sec. (1) as so re-numbered, the following sub-sections shall be added, namely:- " (2) No decree for eviction on the ground set-forth in clause (h) of sub-sec. (1) of sec. 13 shall be passed if the court is satisfied that, having regard to all the circumstances of the case including (he question whether other reasonable accommodation is available to the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court shell pass the decree in respect of such part only. (3) Notwithstanding anything contained in any law or contract, no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set-forth in clause (h) of sub-section (1) of sec. 13 before the expiry of five years from the date the premises were let out to the tenant. " A perusal of the above section would reveal that the effect of the amendment is that while previously if a landlord required the demised premises reasonably and bonafide for the use and occupation of himself or his family, he could obtain a decree for eviction of a tenant but after the amendment the court will have to further examine the question of comparative hardship of the landlord and tenant before passing a decree for eviction against the tenant. There can be no doubt that the provisions of the Act as amended by the Amendment Ordinance of 1975 shall apply to the suits instituted by a landlord after the commencement of the Amendment Ordinance of 1975, that is, after 29 9-75. But the question that arises for consideration is whether the amended provisions of the Act shall also apply to pending proceedings which may fall under any of the following categories - (1) A suit presented by a land-lord under sec. 13 (1) (h) of the Act before 29. 9. 75 that is, before the commencement of the Amendment Ordinance of 1975 and pending disposal before the trial court. (2) An appeal questioning the validity of a decree passed by the trial court or the first appellate court in a suit based on the ground under sec. 13 (1) (h) of the Act pending decision from before 29. 9. 75. (3) An execution proceeding pending in the executing court in respect of the decree for eviction passed under sec. 13 (1) (h) of the Act prior to the amendment, that is, 29-8-75. The tenant's case is that a pending litigation is always to be decided according to the law existing at the time of its final decision and an appeal being in the nature of rehearing of the case or continuation of the suit, the appellate court is also competent to take into account the legislative changes made since the decision under appeal was given and its powers are not confined only to see whether the lower court's decision was correct according to the law as it stood when the decision was given. On behalf of the landlords, it is contended that the new legislation does not take away the rights and privileges acquired by the landlord under the earlier enactment and therefore the pending proceeding ought to be decided according to the law in force at the time the actions were commenced. According to the landlords, they had acquired the right to evict their tenants and this right had not been expressly or by necessary implication taken away by the new legislation. It is emphasised that a statute unless it be a statute dealing with the procedural matter only, should be presumed to be prospective and construed having no retrospective operation. The learned counsel on both the sides as also the interveners cited a large number of authorities before me in support of their respective contentions. From the authorities cited before me, it follows that it is a well settled rule of interpretation of statutes that no statute shall be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary or distinct implication It appears further well established that a retrospective operation is not to be given to a statute so as to impair the existing right or obligation otherwise than as regards the matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. It is thus clear that unless a clear and unambiguous intention is indicated by the Legislature by adopting suitable express words in that behalf, no provision of a statute should be given retrospective operation if by such operation vested rights are likely to be affected. In the words of their Lordships of the Supreme Court in Mst. Rafiquennessa vs. Lal Bahadur Chetri (1), the aforesaid principles are unexceptionable and as a matter of law no objection can be taken to them. Bearing in mind, the above principles, let us examine sec. 14 (2) of the Act as amended by the Amendment Ordinance of 1975. Before doing so, it is necessary to consider sec. 13 (1) (h) of the Act which has already been reproduced earlier. Sec. 13 (1) (h) provides that no court shall pass any decree or make any order in favour of a landlord whether in execution of a decree or otherwise evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act unless the court is satisfied that the premises are required reasonably and bonafide by the landlord for the use and occupation of himself and his family. This section prohibits a court from passing a decree or make an order in execution of a decree or otherwise evicting the tenant if such decree or order directs eviction of the tenant on a ground other than the ground mentioned in sec. 13 (1) of the Act. As already pointed out above, this sub section has not been amended in any way by the Amendment Ordinance of 1975. But sec. 13 (1) of the Act clearly indicates the intention of the Legislature that its provisions are retrospective. This sub-section provides protection even to those tenants against whom execution proceedings were pending at the time of the commencement of the Act. The Amendment Ordinance of 1975 by enacting sec. 14 (2) has provided a further rider to clause (h) of sec. 13 (1 ). Sec. 14 (2) as amended by the Amendment Ordinance of 1975 provided that the court shall not pass a decree for eviction against the tenant unless it is satisfied as to comparative hardship to be caused to the landlord and tenant by passing the decree than by refusing it. The new amended sec. 14 (2) being intimately connected with sec 13 (1) (h) of the Act should also, in my opinion, receive retrospective operation. This is one aspect of the case.
(3.) THERE is yet another aspect of the case. The words "no decree for eviction. . . . . . . . . shall be passed" used in sec. 14 (2) are clearly suggestive of unmistakable indication of the legislative intention to make this sub section retrospective, the reason being that it prohibits the passing of a decree for eviction on the ground mentioned in sec. 13 (1) (h) unless the question of comparative hardship has been examined by the court. In other words, sec. 14 (2) as amended by the Amendment Ordinance of 1975 must inevitably come into play for the benefit of the tenant in the pending suits as also in the pending appeals since it is well settled that an appeal is a continuation of the suit. If the legislature had intended that the provisions of sec. 14 (2) should operate prospectively, it would not have used the words "no decree. . . . . . . . . shall be passed", but instead used the language "no suit for eviction. . . . . . . . . . . . shall be passed against the tenant" as used in sub sec. (3) of sec. 14 of the Act as amended by the Amendment Ordinance of 1975. I am, therefore, of the opinion that no prospective operation to sec. 14 (2) can be given without doing violence to its language. I, therefore, hold that the provisions of sec. 14 (2) as amended by the Amendment Ordinance of 1975 and pending suits and also pending appeals based on the ground under sec. 13 (1) (h) have retrospective effect and would be governed by sec 14 (2) of the Act as amended by the Amendment Ordinance of 1975. Since sec. 14 (2; prohibits only passing of a decree for eviction, the provisions of sec. 14 (2) as amended by the Amendment Ordinance of 1975 shall have no effect to execution proceedings pending in the executing courts wherein the decrees have been passed against the tenants on the ground under sec. 13 (1) (h) of the Act, It is common ground between the parties that none of the courts below has gone into the question of comparative hardship as envisaged under Sec. 14 (2) of the Act as amended by the Amendment Ordinance of 1975. The case will have to be remanded to the trial court for framing an appropriate issue in the light of the amendment and disposing it of on merits in accordance with law. In the result, the appeal is allowed, the decrees of the courts below are set aside and the case is remanded back to the trial court as indicated above. The costs hitherto incurred by the parties shall abide the result. The learned counsel for the respondents prays for leave to appeal to a Division Bench which is granted. . ;