Karimbhai Jariwalla v. Babubhai Vadgama & the Empire Theatre Ltd. Civ. Case 202-D-61; 27/11/69; Mustafa J.

Karimbhai Jariwalla v. Babubhai Vadgama & the Empire Theatre Ltd. Civ. Case 202-D-61; 27/11/69; Mustafa J.

The assignee of the plaintiff/decree holder, applied for execution of a decree against the second defendants, Empire Theatre Limited, for possession of the suit premises. The Empire Threatre Limited made an application in answer to the said notice, to show cause, relying on s. 19(5) of the Rent restriction Act 1962 (as amended) to discharge or rescind the order, or to stay or suspend the execution of it. When the suit was filed, the premises were not subject to the Rent Act, but by the Amending Act No. 57 of 1966, they became subject to it, as the amending Act extended the provisions of the principal act to business premises. The preliminary point of law was taken, that the application of the Empire Theatre Ltd. was incompetent, that they could not rely upon the Rent Restriction act since the amending Act was not retrospection.

            Held: (1) “In my view the main question I have to decide is whether the provisions of section 19(5) of the amending Act 57 of 1966 have retrospective effect. The Court of Appeal for East Africa in Jivraj v. Devraj (1968) E.A. 263, in dealing with a similar provision in the Kenya rent law, held that the amending Act did not have retrospective effect so as to prevent a plaintiff in pending proceedings from obtaining possession from a person who had ceased to be a tenant before the amending Act became effection. As I have said, when the proceedings were initiated in this case and at the time of the recording of the order of adjustment, the suit premises were not subject to rent control. It seems to me that at first sight section 19(5) does give the impression that the amending Act has retrospective effect in that an order for recovery of possession of this premises, whether before or after the passing of this Act, and not executed, could be subject t the executing court, which may discharge or rescind any such order. However, there are in the said amending Act certain transitional provisions, section 29(1) of which read [S]: “29 – (1) Where, at the commencement of this act, any claim, application, proceedings or other matter, or any  appeal, is pending before any Rent Restriction Board established under section 5 of the principal Act as in force immediately before the commencement of this Act or before a court or the High Court, the same may be continued and concluded b the Board, the court or the High Court as the case may be as if this Act had not been enacted.”…..

In view of the transitional provisions I am of opinion the amending Act No. 57 of 1966 has no retrospective effect and the Empire Theatre Limited cannot invoke the provisions of section 19(5). According to common law, where 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. Here the amending Act shows no such intention, in view of the transitional provisions. I also refer to cap. 1, Interpretation and General Clauses Ordinance, section 10, which reads: - (2) Where an Ordinance repeals any other enactment, then, unless the contrary intention appears, the repeal shall not: - …. (c) affect any right, privilege or obligation, or liability acquired, accrued, or incurred under any enactment so repealed; or ….. (e) affect any investigation, legal proceedings, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceedings, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed, as if the repealing Ordinance had not been passed.” I was referred to the judgment of the learned Chief Justice of Tanzania in Kotak Ltd. v. Kooverji reported in (1969) E.A. 295, where at 298, after he had discussed obiter various statements made by the learned judges in Jivraj v. Devraj supra, he states: - “The fact remains, however, that the relation of the transitional provisions of the amending Act to the amended s. 19(5) is not as clear as it could be, and it would be desirable if the position were made more certain.” Unless an amending Act shows either expressly or by necessary implication an intention that the provisions should operate retrospectively, the amending Act has no retrospective effect. Here the learned Chief Justice has said the position is not as clear as it could be. That very fact, I think, would be sufficient to rule out that the amending Act in this case could have retrospective effect.” (2) “The application by Empire Theatre Limited for this Court to review, suspend, stay, discharge or rescind the said Order was incompetent.” Application dismissed. Leave granted to decree holder or his assignee to execute decree.