Ramchander vs Ramappa

This case has come before the Full Bench by virtue of the Referring Order of the Division Bench dated 10th Bahman 1359-F.

The brief facts relating to this case are that the Plaintiff-Respondent filed a suit for specific performance of an agreement to sell the land bearing survey No. 232, stating that on 28th Dai 1352F the Defendant agreed to convey the suit property for Rs. 5000/- after receiving Rs. 1100/- as earnest money. The Defendant had agreed to execute the sale-deed and get it registered within 15 days but has failed to do so. Hence the Plaintiff is entitled to a decree for specific performance.

The Defendant in his written statement denied the execution of the agreement entirely. The trial Court, on the evidence on record, decreed the suit having come to the conclusion that it was proved that the agreement was executed by the Defendant and that he did not carry out his part of the contract. The lower appellate court also confirmed the decree of the trial court. When the case was argued before the Division Bench, the advocate for the Appellant submitted before the court that he would not reopen the findings of fact arrived at by the courts below and confine his argument to the questions of law arising in the case. The Division Bench, having felt the need that the question of law raised in the case required consideration by a fuller Bench in view of the decision of this Court in the Full Bench case of Kumari Kistayya v. First Taluqdar Karimnagar 38 DLR 103 (A), referred the whole case to the Full Bench.

We have heard the arguments of the respective advocates. The first contention of the learned advocate is that the vendor and the vendee axe Lingayats and though at the time of the alleged agreement, the Lingayat community was not included in the class of ''protected tribes'' under the Hyderabad Land Alienation Restraint Act, yet subsequently in 1355F., by a Notification of the Government, the Lingayats also have been included in the class of "protected tribes" and that the court should take notice of the subsequent amendment in the law and decide the case in the light of the amendment. Following up the contention it is urged that if the Appellant is regarded as a. member of the ''protected tribe'' the transaction could not be enforced and the suit would be dismissed inasmuch as after the sale of the suit land the Appellant would not have in his possession, a land for which revenue of Rs. 50/- would be payable which is essential under the provisions of the Hyderabad Land Alienation Restraint Act. Reliance was placed upon the decision of the Full Bench of this High Court in the case referred to-above.

Alternatively it was contended that if this Court holds that the subsequent amendment in, the Act is not applicable, then in that case also the Plaintiff''s suit for specific performance should not be decreed as the relief by way of specific performance was only a discretionary relief and the court would not be pleased to decree specific performance but to award adequate compensation when the price of the land had gone up as by decreeing specific performance the Defendant would suffer heavy loss.

So far as the first contention is concerned, we may point out that it is well established that no statute could be construed to have a retrospective operation unless such a construction appears very clearly from the terms of the Act or arises by necessary and. distinct implication. It may also be observed that no retrospective operation is to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure. In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the ''law, as it existed when the action was begun, unless the new statute shows a clear intention to'' vary such rights, vide Maxwell on Interpretation of Statutes (8th Edn.) pp. 189 and 195. We are further supported in our view by the case of-- AIR 1927 242 (Privy Council) (B), wherein it has been laid down that:

While provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.

Keeping this principle in view, if we look at the notification relied upon by the learned advocate for the Appellant we find that there are no express words giving the amendment a retrospective, effect. We may also point out that at the time when the sale transaction took place, the Plaintiff had acquired a right in the sense that the Appellant was not a member of a ''protected tribe'' and there was no bar to the sale being enforced and this right of his could not be taken away by the amendment which came into force subsequently. The learned Judges who decided the case in 38 DLR 103 (A) relied upon the judgment of the Federal Court in the case of AIR 1941 5 (Federal Court) C). It has to be observed that in that case their Lordships of the Federal Court were dealing with, the provisions of the Bihar Money Lenders'' (Regulation of Transactions) Act, 1939, and relied upon Section 7 of the Act which runs as follows:

Notwithstanding anything to the contrary, contained in any other law or in anything having the force of law, or in any agreement, no court shall, in any suit brought by a money-lender, before or after the commencement of this Act, in respect of a loan, advanced before or after the commencement, of this Act, or in any appeal or proceedings in revision arising out of such suit, pass a decree for an amount of interest for the period preceding the institution of the suit, which, together with any amount already realised as interest through the Court of otherwise, is greater than the amount of loan advanced, or if the loan is based on a document, the amount of loan mentioned in, or evidenced by such document.

Thus it is clear from this that Section 7 of the Enactment made it obligatory on a court of appeal or revision to allow such interest as was allowed under the Act irrespective of the fact as to what the law was at the time when the contract was entered into, the suit instituted, or the decree of the court below passed. It is, therefore, clear that there was an express provision in the statute giving a retrospective operation.

There are no such words in the amendment of 1355F. giving retrospective effect. We, therefore, feel that the aforementioned case in 38 DLR 103 (A), cannot apply. Applying the above principles to the facts of this case, we are of the opinion that the Notification of 1355F. including the community of Lingayats in the Schedule of ''Protected Tribes'' in the Hyderabad Land Alienation Restraint Act, cannot be held to have a retrospective effect so as to affect transactions prior to the date of the Notification. The first contention raised by the Appellant''s advocate fails.

In the second contention also we see no force. The contention is that compensation might be awarded to the Plaintiff instead of decreeing specific performance as the granting of this relief was left entirely to the discretion of the Court. In this connection the learned Counsel invited our attention to the statement of the Plaintiff and the depositions of the witnesses and urged that these statements are sufficient to hold that the price of the land had gone up. After going through the statements, we are of the opinion that they do not help the contention of the Appellant. The statements are general and there is no definite evidence showing to what extent the prices of property had gone up and therefore unless and until we have on record definite evidence as to what extent the prices had gone up, we think it would not be possible for us to determine as to whether the granting of compensation to the Plaintiff instead of decreeing specific performance would be equitable. For these reasons, we think that the facts of this case do not warrant our denying the Plaintiff a decree for specific performance. We, therefore, reject this contention also.

The result is that the Appellant fails and the appeal is dismissed with costs.