P L D 1955 Lahore 288 (PLP)

AKHLAQUE HUSAIN, J.‑This appeal arises out of a suit by the respondent for recovery of Rs. 95,200 in accordance with the provisions contained in the eighth section of the Punjab Urban Rent Restriction Act (No. VI) of 1947 (hereinafter referred to as the Act) which came into force on the 15th of April 1947, and expired on the 14th of August 1949. The facts which led to the institution of the suit and are necessary for the disposal of this appeal are quite simple. The defendants are the owners of the Capital Cinema situate in the City of Lahore, which was leased to one Lala Madan Lal by means of a registered deed, dated the 23rd of June 1944, at a monthly rent of Rs. 4,

450. The lessee was also to pay the sum of Rs. 30 every month for the water supply. In June 1947, the lessee applied to the Controller under section 4 of the Act to fix the 'fair rent'. By his order dated the 11th, of June 1948, the Controller fixed Rs. 1,500 a month as the fair rent. On appeal the District judge upheld the order, with the modification that he did not treat the amount payable for the water supply as a part of the rent, and allowed it in addition to the monthly rent. The appeal was decided on the 30th of April 1949. In the meanwhile Lala Madan Lal, the original lessee, transferred all his rights under the lease of the 23rd of‑ June 1944 to the plaintiff by a registered deed of transfer on the 14th of January 1949. The plaintiff filed the present suit on the ‑7th of June 1949 alleging that since the defendants had been paid rent for the period between the 23rd of August 1945 and the 30th of April 1948 at the rate of Rs. 4,480 a month, he (the plaintiff) was entitled to recover under the Act the amount which he paid in excess of the fair rent subsequently fixed by the Controller. The defendants denied that the plaintiff was entitled to any decree and the pleas‑ .raised by them gave rise to the following issues, which are not happily phrased but the ,parties have never been in doubt as :to their true import, either before us or in the Court below. (1) Is the plaintiff entitled to make a recovery of the arrears of rent ag successor‑in‑interest of Madan Lal lessee ? (2) If so, can the plaintiff make a claim to the amount in excess of the fair rent fixed by the pent Controller relating to the prior period to the passing of the order of that authority? (3) Can the plaintiff claim recovery of the period in excess of six months ? (4) What is the amount of rent paid by the plaintiff and up to which date ? The first issue was answered in favour of the plaintiff. Under the fourth issue the learned trial Judge found that between the 23rd of August 1945 and the 30th of April 1948, a total sum of Rs. 1,43,732 was paid to the defendants as rent. It is not denied before us that until the 30th of April 1948, Rs. 4,450 as rent, and Rs. 30 for the water supply were regularly paid each month and that the two amounts for the month of April 1948 were paid on the 17th of that month. The findings on the second and third issues were in favour of the plaintiff. The Court held that the plaintiff was entitled to recover Rs. 95,200, out of the amount paid by Lala Madan Lal during the period in dispute, and decreed the suit for that amount. In this appeal the entire decree of the lower Court is attacked. The only question canvassed before us by both sides at the Bar is whether any portion of the amount of Rs.1,43,732, paid from month to month during the period in dispute, is recoverable by the plaintiff. The decision of the question turns entirely upon the construction of the relevant provisions of the Act. The eighth section, upon which alone the present action is founded, runs thus :‑ "

8. Rent which should not have been paid may b e re covered.‑(1) Where any sum has, whether before or after the commencement of this Act, been paid which sum is by reason of the provisions of this Act irrecoverable, such sum shall at any time within a period of six months after the date of the payment, or in the case of a payment made before the commencement of this Act, within six months after the commencement thereof be recoverable by the tenant by whom it was paid or his legal representative from the landlord who received the payment or his legal r6pre sentative;and may without prejudice to any other method of recovery be deducted by such tenant from any rent payable within such six months by him to such landlord. (2) In this section the expression 'legal representative' has the same meaning as in the Code of Civil Procedure, 1908, and includes also, in the case of joint family property, the joint family of which the deceased person was a member". This section lays down : (a) that any sum which is "by reason of the provisions of this Act irrecoverable" may be recovered ; (b) any such sum paid before the commencement of this Act may be recovered within six months after the commencement of the Act ; and (c) any such sum paid after the commencement of the Act may be recovered within six months of the payment. It will be observed that, inter alia, this section provides the periods of limitation within which sums which have been made irrecoverable by the Act may be recovered. The learned trial Court was in error in applying Article 120 of the Limitation Act to this suit. Neither that Article nor any other in the Limitation Act is applicable in view of the provisions contained in section 29 of that Act. The Punjab Urban Rent Restriction Act, of which alone the A right claimed in this suit is a creature, is a special as well as a local law within the meaning of section 29 of the Limitation Act and, therefore, the period of limitation provided therein must be applied to the exclusion of any in the first Schedule to the Limitation Act. The right to recover any sum paid to the landlord however, is confined by section 8 of the Act to only such sum which "is by reason of the provisions of this Act irrecoverable". The word "irrecoverable" does not occur in any other section of the Act and the only sections which, at first sight, give any indication as to what sums are irrecoverable by reason of the provisions of the Act are the sixth and seventh sections. Section 6 is as follows :‑ "Landlord not to claim anything in excess of fair rent-- (1) Save as provided in section 5, when the Controller has fixed the fair rent of a building or rented land under section 4‑- (a) the landlord shall not claim or receive any premium or other like sum in addition to fair rent or any rent in excess of such fair rent but the landlord may stipulate for and receive in advance an amount not exceeding one month's rent ; (b) any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent shall be null and void. (2) Nothing in this section shall apply to the recovery of any rent which became due before the 1st day of January 1939". Clause (a) of first subsection prohibits claiming or receiving in addition to 'fair rent' (1) any premium, or (2) other like, sum, or (3) any sum by way of rent in excess of the fair rent. The prohibition to receive any such sums makes them 'irrecoverable' by the landlord. But the prohibition comes into play and the sums become irrecoverable only `when the Controller has fixed the fair rent'. There is no bar to the landlord receiving these sums before the fixing of the fair rent and, therefore, before that even they are recoverable: The reason, although not necessary to investigate, is obvious. This section seeks to relieve a tenant only when he feels aggrieved. He may be satisfied with the terms and conditions of his tenancy and, therefore, may not seek the intervention of the Controller, in which case the provisions of this section would not operate on his tenancy. The sums which become due at any time before the fixing of the fair rent but remain unpaid until thereafter become irrecoverable because the section forbids the landlord from `claiming' or 'receiving', after fair rent is fixed, any of the three sums specified in clause (a) irrespective of the fact whether they fall due before or after the crucial event, namely, the fixation of fair rent. The test laid down is the claiming and receiving and not the becoming due. This is also borne out by subsection (2), according to. which any rent which became due before the 1st of January 1939, can never become irrecoverable by reason of the provisions of this section. The test whether a sum is due or not, is applied by the section only to determine those amounts which are within the contemplation of the Act. Thus subsection (2) and clause (a) of subsection (1) read together make it abundantly clear that (a) any premium or other like sum becomes irrecoverable regardless of the fact as to when it fell due; and (b) any rent in excess of the fair rent which remains unpaid until after the fixing of the fair rent becomes irrecoverable provided it had not fallen due before the 1st of January 1939. Clause (b) of subsection (1) only further strengthens and fortifies this affect of the section but does not modify it. The clause makes the agreement null and void only after the fair rent has been fixed and disables the landlord thereafter from claiming anything on its basis or receiving anything thereunder. Another section in the Act which has an apparently direct bearing on the auestion of irrecoverability' is section

7. It provides :- "Fine or premium not to be charged for grant, renewal or continuance of tenancy.-(1) No landlord shall in consideration of the grant, renewal or continuance of a tenancy or any building or rented land require the payment of any fine, premium or any other like sum in addition to the rent. (2) Nothing in this section shall apply to any payment under any subsisting agreement entered into before the 1st day of January 1939". This section does not deal with rent received or payable in excess of fair rent. It only relates to 'fine, premium or any other like sum in addition to the rent' ; and the applicability of its provisions is not dependant on the fixing of fair rent. Any sum of the category mentioned in the section cannot be claimed or received by the landlord after the Act comes into force, regardless of the fact whether fair rent has been fixed or not, or whether it became due before or after the Act. Since, however, the sum claimed in this suit represents rent in excess of the fair rent, and not any fine, premium or any other like sum, nothing in this section has any bearing on the decision of this case. The only other provision of this Act which has a bearing on the ascertainment of the stems which are to be treated as "irrecoverable" "by reason of the provisions of the Act" c is contained in section 21: "The Punjab Urban Rent Restriction Act, 1941, is hereby repealed". Section 4 o the Punjab General Clauses Act (I of 1898) lays down :- "Where this Act or any Punjab Act repeals any enactment then, unless a different intention appears, the repeal shall not- (a) . . . . . . . . . . . . ; or (b) affect .the previous operation of any enactment so repealed or anything duly done or suffered there under ; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or (d) . . . . . . . . . . . . ; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed". Thus the repealing section of the Act, read with section 4 of Act I of 1898, has . the effect of maintaining the irrecoverability of the sums which were irrecoverable by the landlord under the repealed Rent Restriction Act of 1941 and had not ceased to be irrecoverable by reason of. the expiry of the period of limitation for their recovery. These have been made recoverable by the tenant under section 8 of the Act. In the subsequent Rent Restriction Acts of 1949 and 1953, there was no repealing section because the preceding Acts, which were to remain in force only for a limited period, had expired. For this reason those Acts contain saving sections reproducing, almost verbatim, the relevant provisions of section 4 of Act I of 1898. It is, therefore, clear that inasmuch as the fact that the Act repeals the Act of 1941 has the effect of keeping the sums which were irrecoverable under the latter Act, on the date of its repeal, irrecoverable even after the Act, those sums are irrecoverable "by reason of the provisions (in the repealing sections) of this Act". They may also be irrecoverable for some other reason ; but they are so "by reason of the provision- of the Act" as well. As we are concerned only with rent in this case let us now see what sums paid or payable as rent were irrecoverable under the Act of 1941. In that Act the test of irrecoverability of rent was the 'standard rent'-and not 'fair rent' as in the Act of 1947. While according to the latter Act 'fair rent' has in every case to be "fixed" by the Controller, in the former Act, in most cases, it was possible for the parties to know, without going to a Court or Controller, the exact amount of the 'standard rent' ; and to say whether the rent of the premises was or was not in excess of it. Section 2 (d) of the Act (X) of 1941 runs "In this Act, unless there is anything repugnant in the subject or context- (d) the expression 'standard rent' in relation to any premises means- (i) the rent at which the premises were let on the first day of January 1939 ; or (ii) where they were not let on the first day of January 1939, the rent at which they were last let before that date ; or (iii) where they were or shall be first let after the first day of January 1939, the rent at which they were or shall be first let ; or (iv) in any of the cases specified in section 14 the rent fixed by the Court". Thus immediately on the passing of this Act a tenant was in a position to know whether the rent he had been paying, whether ‑before or after the Act, was in `excess of the standard rent or not‑except, of course, in the case to which the provisions of section 14 were attracted and the Court may, at the instance of either party, be called upon to fix the standard rent in view of certain special circumstance. By section 5 the following amounts paid or payable as rent were made 'irrecoverable' : (a) the amount in excess of standard rent, which became due between the 1st of January 1939 and the date on which the Act came into force, whether it had been paid or not before the Act; and (b) the amount in excess of the standard rent which fell due after that Act, whether paid or still due. Both these amounts were made recoverable by the tenant by section 13, which further laid down, like section 8 of the Act of 1947, that the irrecoverable amounts paid before that Act could be recovered only within six months of the commencement or that Act and those paid afterwards within six months of the payment. It will be seen that under the Act of 1941 there could be no conflict (such as has been envisaged by the learned Senior Civil Judge in construing section 8 of the Act of 1947 in this case) between the date of the accrual of cause of action and the date of the commencement of the limitation in respect of a suit for recovery of the irrecoverable amounts paid before that Act Both the dates were identical, viz., the date on which that Act came into operation. The difficulty with which the learned trial judge was faced in this case can arise only if it is supposed that certain sums paid before the Act of 1947 have been made irrecoverable expressly, and in so many words, by some section of this Act alone; and not, as laid down in the Act itself, by reason of the provisions of the Act. As regards rent no amount can become irrecoverable under section 6 of the Act of 1947 unless 'fair rent' has been determined. This may or may not be done in time to enable a tenant to take action for recovery within six months of the commencement of the Act ; and an intention to lay down a wholly arbitrary and wayward rule cannot, unless it is altogether unavoidable, be imputed to the Legislature. Moreover, ' the language of that section is couched in the future tense ; and in the absence of express words, or necessary implication, a statute or any provision thereof, cannot be given retrospective effect. Similarly the provisions regarding sums other than rent, contained in the next following section, viz., the seventh, are also not retrospective in their effect and cannot affect payments made before the Act. Neither the learned trial Court nor the learned counsel, who argued the case before us, have been able to point out any other section of the Act which expressly makes any sum paid before the Act irrecoverable. Since it is a well‑established principle of construction that no words in a statute should be treated as meaningless or as surplus age so long as it is rationally possible to give them a meaning or significance, the irresistible conclusion regarding the words "where any sum has before . . . the commencement of this Act been paid in section 8 of Act VI of 1947 is that they refer to the sums which were expressly made irrecoverable by the preceding Act of 194: and have remained so by reason, as already explained, of the provisions of section 21 of the former Act. In the case before us it is not alleged that any portion of the sum claimed by the plaintiff became irrecoverable under the Act of 1941 and is, therefore, recoverable by him under section 8 of the Act of 1947. In fact such an allegation could not have been made because it is‑ not the plaintiff's case that the rent ever exceeded the 'standard rent' ; his sole grievance is that it exceeded the 'fair rent' fixed in 1948. The premises in question were built in 1944‑45 (Exh. P. 7). Consequently the rent at which they were let out to Lala Madan Lal in 1944, with effect from the 24th of August 1945, (vide (Exh. P. 1), was the 'standard rent' according to section 2 (d) (iii) of Act X of 1941). Thus no amount paid by the plaintiff before the commencement of the Act of 1941 has been shown to have become 'irrecoverable'. Nor are the provisions of the sixth section of any help to the plaintiff. Since no amount on account of rent for the period in question, (viz., from the 23rd of August 1945 ' to the 30th of April 1948), was in arrears on the date the fair rent was fixed (the 11th of June 1948 t or the 30th of April 1949, if the date of the decision of the appellate Court be taken to be the date), no part of the amount claimed in this suit is irrecoverable by reason of any provisions in the Act. It has been admitted by the plaintiff that the entire rent for the period in suit was paid regularly from month to month and was not in arrear on the date the fair rent was fixed. As no part of the amount in suit became 'irrecover able' by reason of any provisions of the Act, nothing is recoverable by the plaintiff. I would, therefore, accept this appeal and, setting aside the judgment and decree of the learned Senior Civil Judge, dismiss the plaintiff's suit with costs in this Court and in the Court below. KAYANI, J.‑I agree with the conclusion that the suit be dismissed, but for entirely different reasons. It is necessary to give here a brief history of the various enactments relating to rent restriction. The first of these is the Punjab Urban Rent Restriction Act, No. X of 1941. This was superseded by Act No. VI of 1947, which governs the present case and which repealed the Act of 1941 It was a Governor's Act, promulgated under section 93 of the Government of India Act and expired without effort on the 14th of August 1949, from which date a regular Act, No. XXIII of 1949, came into force for a period of three years. This should have been succeeded by another Act in 1952, but the new Act, No. XVI of 1953, was actually notified in May 1953, with retrospective effect from 14th August 1952, the period of its operation being two years. The Act of 1941 being a non'‑temporary Act, section 4 of the Punjab General Clauses Act kept its previous operation alive even after the date of its repeal in 1947, "unless a different intention appears". The succeeding enactments being periodical, the Acts of 1949 and 1953 contained a special section identical in matter with section 4 of the General Clauses Act. The effect is that, unless a different intention appears in the succeeding Act, it does not affect any right or liability acquired or incurred under the previous Act. It is also necessary to compare the relevant provisions of the Acts of 1941 and 1947. The principal difference between them, which apparently the draftsman of the latter Act overlooked, is the difference between "standard rent" and "fair rent". Section 2 (d) of the former defines "standard rent" as (i) the rent at which the premises were let on the first day of January 1939 ; or (ii) where they were not let on the first day of January 1939, the rent at which they were last let before that date ; or (iii) where they were or shall be first let after the first day of January 1939, the rent at which they were or shall be first let ; or (iv) in any of the cases specified in section 14, the rent fixed by the Court. Thus, apart from clause (iv), while standard rent was a matter within the knowledge of the tenant, "fair rent" was to be fixed by the Court on the application of the tenant or landlord. (See section 4 of the Act of 1947). Section 5 (1) of the Act of 1941 is as follows :‑ "Restriction on raising rent.‑Subject to the provision of this Act, where the rent of any premises has been or is hereafter, during the continuance of this Act, increased above the standard rent, the amount by which such increase exceeds the standard rent shall notwithstanding an‑,, agreement to the contrary, be irrecoverable Provided that nothing in this section shall apply‑ (a) to any rent which became due before the first day of January 1939 ; (b) to any periodical increment of rent accuring under any agreement entered into before the first day of January 1939 ; or (c) to rent payable under any lease entered into before the first day of January 1939, which has not expired on the said date". Section 9‑"Fine or premium not to be charged for grant renewal or continuance of tenancy.‑(1) It shall not be lawful for any person, in consideration of the grant, renewal or continuance of a tenancy of any premises, to require the payment of any fine, premium or. any other like sum in addition to the rent. (2) Where any such payment has been made after the first day of January, 1939, the amount shall be recoverable by the tenant by whom it was made, from the landlord, and may without prejudice to any other method of recovery be deducted from any ‑rent payable by him to the landlord. (3) Nothing in this section shall apply to any payment under any agreement entered into before the first day of January 1939. Section 13‑"Rent which should not have been paid may be recovered.‑(1) Where any sum has, whether before or after the commencement of this Act, been paid in account of rent, being a sum which is by reason of the provisions of this Act irrecoverable, such sum shall at any time within a period of six months after the date of the payment, or, in the case of a payment made before the commencement of this Act, within six months after the commencement thereof, be recoverable by the tenant by whom it was paid from the landlord who received the payment or his legal representative, and may without prejudice to any other method of recovery be deducted by such tenant from any rent payable within such six months by him to such landlord. (2) In this section the expression 'legal representative' has the same meaning as in the Code of Civil Procedure, 1908, and includes also, in the case of joint family property, the joint family of which the deceased person was a member": These are all very clear provisions, when read together. Section 5 made "irrecoverable"‑for the landlord‑any increase above the standard rent, except when it was permitted by any agreement entered into before the 1st January 1939. Section 9 made "not lawful" any fine, premium or other like sum in consideration of the grant, renewal or continuance of the tenancy, except when it was paid under an agreement entered into before the 1st January aforesaid. The mode of recovery of this amount if it was paid after the 1st January 1939, is stated in subsection (2). It "shall be recoverable by the tenant". It has not been made "irrecoverable" by the landlord as in section 5. 1 am calling attention to plain constructions because the draftsman of 1947 has caused to me anxious thought in so far as he has not paid due attention to the word "irrecoverable" used in the Act of 1941, only in sections 5 and

13. And section 13, like section 5, deals with, rent, not with premium or fine. It says that where a sum, which is "irrecoverable" by the provisions of the Act, has been paid, whether before or after the commencement of the Act, it can be recovered within six months of the payment, or of the commencement of the Act, as the case may be. On the date of the passing of the Act, the tenant would know whether he is paying in excess of the standard rent, and if so, the excess would be irrecoverable" by him under section

5. If he applies within six months of the Act, he can recover even amounts paid before the Act commenced. Now we come to the Act of 1947. Section 4 thereof provided the machinery for the fixation of fair rent, with reference both to the rents prevailing before 1939 and the rental value of the building as entered in the property tax assessment register of the municipal area concerned, and it was time to do so in view of the vast disproportion between the "standard rent" and the increasing prices of other commodities. It was for that reason that the application for the fixation of fair rent could be made both by the landlord and the tenant. The other relevant sections of the Act are as follows :‑ Section 6‑"Landlord not to claim anything in excess of fair rent.‑(1) Save as provided in section 5, when the Controller has fixed the fair rent of a building or rented land under section 4‑ (a) the landlord shall not claim or receive any premium or other like sum in addition to fair rent or any rent in excess of such fair rent but the landlord may stipulate for and receive in advance an amount not exceeding one month's rent ; (b) any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent shall be null and void. (2) Nothing in this section shall apply to the recovery of any rent which became due before the 1st day of January 1939 ". Section 7‑"Fine or premium not to be charged for grant renewal or continuance of tenancy.‑(1) No landlord shay in consideration of the grant, renewal or continuance of a tenancy of any building or rented land require the payment of any fine, premium or any other like sum in addition to the rent. (2) Nothing in this section shall apply to any payment under any subsisting agreement entered into before the 1st day of January 1939". Section 8‑"Rent which should not have been paid may be recovered.‑(1) Where any sum has, whether before or after the commencement of this Act, been paid which sum is by reason of the provisions of this Act irrecoverable such sum shall at any time within a period of six months after the date of the payment, or in the case of a payment made before the commencement of this Act, within six months after the commencement thereof be recoverable by the tenant by whom it was paid or his legal representative from the landlord who received the payment or his legal representative, and may without prejudice to any other method of recovery be deducted by such tenant from any rent payable within such six months by him to such landlord. (2) In this section the expression 'legal representative' has the same meaning as in the Code of Civil Procedure, 1908, and includes also, in the case of joint family property, the joint family of which the deceased person was a member". Section 6 corresponds to section 5 of the old Act, with this difference : Firstly, whereas section 5 concerned itself with rent only, taking notice of premium or fine only in section 9, section 6 of the new Act included premium also its provisions, without any ostensibly good reason. The only reason I can think of is that it was intended to show that even premiums will be hit after the fixation of fair rent, but, if that was the only object, it could be accomplished by section 7, even without modification, or with suitable modification, if necessary. Secondly, while section 5 of the old Act saved not only the rent which became due before the 1st of January 1939, but also the rent payable under an agreement entered into before that date, section 6 of the new Act avoided all agreements whether relating to premiums or to rent and there is nothing in the language of clause (b) of subsection (1) to confine it to future agreements, particularly when subsection (2) was made to save only such rent as became due before the 1st of January 1939, pointing by implication that rent which became due there after would not be saved, even though payable under an agreement entered into before that date. This introduces a discrepancy between clause (b) aforesaid (in so far as it relates. to the payment of premium) and subsection (2) of section 7 which permits the payment of premium even after January 1939, if it has been provided for by an agreement entered into before that date. Even if clause (b) aforesaid referred to future agreements, it would be inconsistent with subsection (2) of section

7. Thirdly,‑and this is most important‑‑section 6 of the new Act, in terms, does not say that, anything shall be "irrecoverable" by the landlord : he shall not claim or receive" anything in excess of fair rent Independently of the language of section 5 of the old Act, we could have l easily said that what the landlord cannot claim or receive is "irrecoverable" by him, but we have seen that the draftsman of the later Act, when he came to section 13; was thinking very loudly of the word "irrecoverable" used by him earlier in section 5, and we shall presently see that the draftsman of the later Act was merely copying out the language or g section 13 In section 8 of this Act, almost verbatim ,the only material difference being that the new Act omitted the words "on account of rent", the intention being to apply the consequences of irrecoverability to premiums also He could have more conveniently reproduced subsection (2) of section 9 of the old Act, when drafting section 7, and if he had done so, and had thus confined all provisions bearing on premiums to section 7, it would have been unnecessary for us to speculate whether rents and premiums were intended to be treated differently. But while omitting the words "on account of rent", it should have occurred to him that the marginal note "Rent which should not have been paid may be recovered was not left in a very comfortable context. A marginal note is unimportant, but I am using the present marginal note to suggest a frame of mind oblivious to the full implications of the old section 13, which had a direct reference to a section‑Section 5‑that made something irrecoverable in express terms, very differently worded from section 6 of the new Act. In copying out the old section, the draftsman thought nothing of the difference between standard rents and fair rent, between a known and an unknown figure, and provided limitation for recovery in similar terms ‑six months from the date of payment, or, in case of payments made before the Act, six months from the commencement of the Act. Now although it was possible for a ruthlessly efficient Controller to fix fair rent before the expiry of six months from the date the Act commenced, so that the tenant could institute a suit for recovery within the period of limitation, it would often take him more than six months to do so, as in the present case, and each time that ruthless circumstance throws him out of six months, he throws the tenant out of limitation. There is no question of imputing an intention to the Legis lature. There was no Legislature, and, in fact, there was no drafting. The only Act was to be reconditioned to suit the incidents arising out of "fair rent". Consequently, it was the fault of substitution, not of drafting. The intention still was to make recovery possible within six months of payment, but no provision was made for the time taken in the fixing of fair rent. Now let us examine the relevant provisions of the Act of 1947, independently of the old Act. By section 6, after fair rent has been fixed, the landlord is forbidden to claim anything in excess of fair rent. The claim would seem to relate to the future, and would even exclude amounts which became due in the past and which have not been paid: Subsection (2), however, would suggest that the landlord should not claim or receive even rents which became due between the 1st of January 1939, and the commencement of the Act of 1947. Consequently, section 6 as a whole would mean that any amount which became due by way of rent after the 1st January 1939, if it has not been paid before the fixation of fair rent, would be irrecoverable ; that any other amount such as fine or premium, will be irrecoverable irrespective of whether it became due before or after the 1st January aforesaid. So far, we seem to be on safe ground. But when we reach section 7, we find that subsection (2) thereof saves from irrecoverability even fines and premiums payable under a subsisting agreement entered into before the 1st January 1939. If, therefore, the two sections are consistent with each other, section 6, so far as the payment of fines and premiums go, should be read subject to subsection (2) of section

7. It was for this reason that I pointed out earlier that, as in the Act of 1941, the subject of fines and premiums should have been confined to section

7. However, that is not our principal difficulty. Our difficulty arises when we reach section

8. Reading sections 6 and 7 together, we can bet pretty certain that certain amounts in excess of fair rent, even if they belong to a period preceding the Act of 1947, provided they do not precede the historical first of January 1939, should be deemed to be "irrecoverable". Section 8 says that any sum which is "by reason of the provisions of thin, Act irrecoverable", may be recovered by the tenant (1) within six months of the date of payment, or, (2) "in the case of a payment made before the commencement of this Act, within six months after the commencement thereof". It clearly contemplates payments made before the commencement of the Act. There is no inconsistency with sections 6 and 7, but how is a person to recover an amount which is unascertained at the date of the commencement of the Act and to ascertain which he will in most cases require a period of stormy litigation exceeding six months ? My brother Akhlaque Hussain thinks that the difficulty would be solved by confining attention to payments which were "irrecoverable" under the Act of 1941, and it is true that the General Clauses Act saves the previous operation of the Act aforesaid. But, since the draftsman knew the effect of repeal, he ought to have known that section 13 of the old Act provided a limitation of six months for "irrecover able" amounts, and that the provision of a fresh period of six months from the date of the commencement of the new Act would confer upon the tenant an unjustified advantage, enabling him to recover even sums which had become barred under the old Act. Thus, if the landlord had ‑ received anything in excess of standard rent in April 1943, the tenant could recover it under the old Act upto October 1943. In November 1943, it would be time‑barred, but if my brother's interpretation is correct, the Act of 1947 made it possible for the tenant to recover it within six months of April 1947. It maybe argued that if a sum was time‑barred under the old Act, the repealing of that Act could not bring it within time, and that, consequently, such sum was not within contemplation. Firstly, this argument loses sight of the fact that in our interpretation of section 8 we are only thinking of "irrecoverability" under the old Act, and what was irrecoverable was that which exceeded standard rent, not that which was beyond the period of limitation. Limita tion was fixed only after a sum was found to be irrecoverable. Consequently, when we argue that in section 8 the draftsman was thinking of amounts which were "irrecoverable" under the old Act, we are thinking of irrecoverability irrespective of limitation. Secondly, if the time‑barred amounts were not within contemplation, then the only amounts that could have been contemplated were those which were paid within five months and twenty‑nine days before the commencement of the Act, and if they obtained a fresh lease of six months, the effect of repeal was not only to preserve rights already acquired; but also to save expiring rights. This would be arbitrary legislation. If the draftsman was aware of the provisions of section 4 of the General Clauses Act‑and it would be idle to argue that he was not‑he would leave the "irrecoverable" amounts of the old Act untouched, in the fullness of knowledge that unless he made a contrary provision, the tenant would be able to recover them according to the machinery employable under the old Act. In that case he would delete the words "whether before or after the commencement of this Act" and the consequential words "or in the case of a payment all made before the commencement of the Act, within six months after the commencement thereof". He could not afford to be misunderstood, and there was every chance of his being misunderstood in respect of the fresh period of limitation supperadded to the old period. If; notwithstanding these considerations, he did not resort to deletion, he must be intending to apply the rule of irrecoverability to amounts which became irrecoverable by reason of the fixation of fair rent, though they had become due before the commencement of the Act. Read in the context of "fair rent" and of sections 6 and 7, it would be fair to assume that in section 8 also, he was thinking of "fair rent", not of "standard rent". In fact it was necessary for him to do so, if he was to meet the incidents arising out of fair rent. For the fixation of fair rent made unlawful even such amounts as were lawful under the old Act. Thus, the rent fixed in the present case in 1944 was "standard rent" according to clause (iii) of section 2 (d) of the old Act, though it is far in excess of "fair rent" under the Act of 1947. To argue that what is "by reason of the provisions of this Act irrecoverable" is that which is irrecoverable by reason of an implied provision, namely, the provision relating to repeal, is to stretch inter pretation to the breaking‑point ; also, to ignore an express provision. For there is an express provision as to irrecover ability in section 6, although not in so many words. We must regard it an express provision, because as far as payments made after the commencement of the Act go, the word "irrecoverable" used in section 8 admittedly applies to them. Then it will be presently found that the difficulty will not be resolved by the insertion of the word "implied" in section

8. What will happen to the payments made after the commencement of the Act, if they were made before the fixation of fair rent? The tenant may apply to the Controller within six months of the payment, but the Controller may not be able to determine fair rent within that period. Section 8, however, will operate here as stiffly as in the case of a payment made before the commencement of the Act. The solution suggested by my brother, therefore, covers only a small part of the field, the "pre‑natal" period the period after the birth of the Act stares us in the face. And since a tenant will not pay anything in excess of fair rent after such rent has been fixed, the question of recovering what is "irrecoverable" arises only in respect of payments made before the fixation of fair rent ; wherefore, the full music of a six‑months' limitation will have to be faced in every case of future payment in excess of fair rent. In fact, my brother having reached the conclusion that sections 6 and 7 of the Act of 1947 are not retrospective, whatever payments are made under those sections in future would naturally be payments made before the fixation of fair rent, and since the fixation of fair rent would take time, the six months' limitation will have expired in most cases before the tenant knows that he possesses a cause of action for a suit. I should point out incidental, that, in holding section 6 to have merely prospective effect, my brother has not taken notice of subsection (2) thereof, which, by providing that "nothing in this section shall apply to the recovery of any rent which became due before the 1st of January 1939", provided by necessary implication that it applied to rent which became due after the date aforesaid. I would, therefore, prefer to hold, rather than try ineffectively to furnish reasons for what "the Legislature" did not even contemplate, that the object of reproducing i section 13 of the old Act as section 8 was to preserve the same sort of limitation as was provided by the old Act, (except that the deletion of the words "on account of rent" was intended to make the section applicable to premiums and fines also) but that the draftsman lost sight of the difficulty which the substitution of fair rent for standard rent would create. And since limitation is in plain words confined to six months after the commencement of the Act, once it has started running with the commencement of the Act, we cannot suspend it arbitrarily until the cause of action should be ascertained. A. H. Appeal accepted.