Mahajan, J.

1. The applts. are owners of a property known as "Bharat Bhuvan Theatre" at Ahmedabad. The resps. are the lessees of the said theatre. The term of the lease was to expire on 2-12-1945, unless the lessees gave to the landlords three months previous notice in writing of their intention of exercising their option of renewal of the lease for a further period of two years. On 13-12-1945 the applts. filed the suit out of which this appeal arises for ejectment of the resps. and for recovery of certain amounts. This suit was decreed on 14-10-1947 on the following findings : (1) that the resps, had not exercised the option of the renewal of the lease according to the stipulations contained in the lease, (2) that they had committed breaches of the terms of the lease, and (3) that they were not protected by the Rent Restriction Act. An enquiry was directed into the amount of mesne profits. The resps. filed an appeal in the H. C. against the decree of the Joint Civil Judge on 10-11-1947. The appeal was heard by a Bench of the H. C. (Weston and Dixit JJ.) on 26-2-1948 and was decided on 1-4-1948. The judgment and decree of the Joint Civil Judge were reversed and the pltfs suit was dismissed. The H. C. affirmed the finding of the trial Court on the first point and held in agreement with it that the resps. had not proved that they gave three months previous notice in writing to the applts. for renewal of the lease as required by cl. 4 (2) of the lease. It reversed the finding of the trial Judge on the point that the resps. had committed breaches of the terms contained in cl. 2 (20) of the lease. Finally it reached the conclusion that although the decree appealed from was right on the date it was made, yet in view of the altered circumstances created by reason of coming into operation of Act LVII [57] of 1947 the applts. were not entitled to recovery of possession of the suit premises. Being aggrieved by the judgment of the H. C. the applts. obtained a certificate and filed an appeal in this Court on 7-3-1949, and it is now before us for decision.

2. It was contended before the H. C. that the appeal being in the nature of a rehearing, it should be decided in accordance with the provisions of Act 57 [LVII] of 1947 which came into force on 13-2-1948 and not in accordance with the provisions of the Act in force at the time when the decree was passed by the trial Court. In other words, the contention was that there having been a change in the law after the date of the decree passed by the trial Judge and before the appeal was heard, the rights of the parties should be determined in accordance with the law as it stood on the date of the hearing of the appeal. The H. C. gave effect to this contention and set aside the decree made for ejectment of the respondents.

3. The learned counsel for the applts. challenged the decision of the H. C. before us on three grounds: (1) that assuming that the appeal had to be decided by the H.C. in accordance with the provisions of Act 57 [LVII] of 1947, the provisions of that Act had no application to pending appeals which had been excluded from its ambit ; (2) that Act 57 [LVII] of 1947 had been amended by Bombay Act III [3] of 1949 dud that the appeal pending in this Court should be decided in accordance with the provisions of the amended Act which excluded pending appeals from the purview of Act 57 [LVII] of 1947 ; and (3) that the H. C wrongly reversed the trial Courts finding that the resps. had committed breaches of the terms contained in cl. 2 (20) of the lease. The learned counsel for the resps. besides controverting the contentions raised on behalf of the applts. contended that both the Courts had erred in holding that the resps. had not proved that they exercised the option of renewal of the lease according to the stipulations contained therein.

4. In our opinion, the decision of the appeal depends solely on the construction of Ss. 12 50 of Act 57 [LVII] of 1947. The question to decide is whether the Bombay Rents, Hotel and Lodging House Rates Control Act, 57 [LVII] of 1947, which was enacted on 19-1-1948 and which came into force on 13-2-1948 has application to pending appeals or whether its retrospective effect is limited to cases mentioned in S. 50 of the Act. The point whether the option of renewal was exercised according to the covenants of the lease is concluded by a concurrent finding of fact and nothing that Mr. Daphthary said in support of his contention in any way shakes that finding. The case must therefore be decided on the assumption that the resps. did not exercise the option given to their under the lease for its renewal. We are also not impressed with the argument of the learned counsel for the applts. that the H. C. wrongly reversed the finding of the trial Judge on the point that the resps. committed breaches of the terms of the lease. We should not however be taken to concur in all the reasons given by the H. C. for reversing that finding.

5. Whether the H. C. was right in holding that the provisions of Act 57 [LVII] of 1947 have application to appeals pending at the time when that Act came into force, the answer to this question depends on the construction to be placed on Ss. 12 and 50 of Act 57 [LVII] of 1947. Section 12 of the Act is in these terms :

"(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.

(2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in S. 106, T. P. Act, 1882.

(3) No decree for eviction shall be passed in any such suit if, at the hearing of the suit, the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit.

Explanation -In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-s. (2), he makes an application to the Court under sub s. (3) of S. 11 and thereafter pays or tenders the amount or rent or permitted increases specified in the order made by the Court."

6. This is the substantive section giving protection to the tenant against ejectment. Section 50 which occurs in Part IV dealing with miscellaneous matters is the repeal section. It repeals the Act of 1939 and the Act of 1944, and while repealing these statutes it provides as follows :

"Provided that all suits and proceedings(other than execution proceedings and appeals)between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part II apply and all suits and proceedings by a manager of a hotel or an owner of a lodging house against a lodger for the recovery of charges for, or possession of, the accommodation provided in a hotel or lodging house situate in an area to which Part III applied, which are pending in any Court, shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under this Act ; and thereupon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings :

Provided further that -

(a) every order passed or act done by the Controllers under Part IV of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944 and every order or act deemed to have been passed or done under that Part shall be deemed to have been passed or done under this Act ; and

(b) all proceedings pending before the Controllers under Part IV of that Act shall be transferred to and continued before the Controllers appointed under this Act as if they were proceedings instituted before the Controllers under this Act."

7. The H. C. held that S. 50 merely provided for transfer of pending suits and proceedings to Courts given jurisdiction under the Act to hear their and that from its ambit execution proceedings and appeals were excluded because no question could arise of their being transferred from one Court to another and that an appeal being a continuation of the suit and in the nature of a re-hearing, the provisions of S. 12 should be applied to pending appeals. The opinion expressed by the D.B on the construction of Ss. 12 and 50 of the Act was questioned in Nilkanth v. Rasiklal, A. I. R. (36) 1949 Bom 210 [LQ/BomHC/1948/122] : (I. L. R. (1949) Bom. 265 F. B ), and the matter was referred to a F. B The F. B. overruled the decision reached by the D. B. on the construction of S. 50 and observed that it was clear that in terms the provision of the new Act and the rules made thereunder are made to apply only to such suits and proceedings which are transferred under the provisions of this section and that its retrospective effect is confined to what is expressly stated in S. 50 of the Act. We are in respectful agreement with the view expressed by the F. B. On a plain reading of the language of Ss. 12 and 50 it seems clear to us that the Act was given retrospective operation only to a limited extent and execution proceedings and appeals were excluded from this effect and were to be governed by the provisions of the law in force at the time when the decrees were passed. The concluding words of S. 50 "and there upon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings" fully bear out this construction. Mr. Daphthary contended that the whole object of S. 50 was to make provision for transfer of pending cases to Courts which were given jurisdiction under the Act to hear them and the section did not concern itself with the extent of the retrospective operation of the Act, and that S. 12 of the Act which gives protection to tenants should be construed as having retrospective effect In our opinion, this contention is not sound. Section 50 cannot be described as a section providing merely for transfer of pending cases to Courts having jurisdiction to deal with them. It is on the other hand a repeal" section in the new statute. It repeals the two earlier statutes, and while repealing them it provides that the repeal shall not affect "executions and appeals" and that the provisions of the Act shall apply to all pending suits which shall be transferred to the Courts having jurisdiction to hear them under S. 28 of the Act. We are also inclined to agree with the view of the F. B. that S. 12 is in terms prospective and not retrospective. Sub-section (2) clearly relates to suits which may be instituted after the Act comes into force. It cannot apply to suits which were already pending when the Act was put on the statute book. Sub-section (3) which gives the right to the tenant to pay or tender the rent at the hearing of the suit only applies to those suits which may be instituted after the Act comes into operation because it in terms states in such suit" and not in any suit. such suit can only be a suit referred to in sub-ss. 2 and 3 of S. 12.



8. The result, therefore, is that, in our opinion, the H. C. erroneously applied the provisions of Act 57 [LVII] of 1947 to the appeal in this case and was wrong in allowing it on that basis. In this view of the case it is unnecessary to deal with the alternative argument of the learned counsel for the applts. that this appeal should be decided in accordance with the provisions of Act III [3] of 1949. We accordingly set aside the decree of the H. C. dismissing the pltf.s suit and restore the decree of the trial Judge decreeing the pltf.s suit with costs.

9. Appeal allowed.