Manohar Lall, J.This is an appeal by defendants 1 and 2 who are aggrieved by the concurrent decisions of the Courts below decreeing the suit of the plaintiff for ejectment of the appellants from a portion of the house which was in their occupation as monthly tenants in the circumstances about to be narrated. The main question argued before us is whether the appellants are protected from eviction by the application of the Bihar House Rent Control Order of 1942 (hereinafter to be referred to as the Control Order) and the application of the Bihar Buildings Control Act, 1947 (hereinafter referred to as the Act) or its predecessor the Control Ordinance, 2 of 1946.

2. The facts found may be shortly stated. The plaintiff is the proprietor of 13 annas l& pies share in the house situated in the town of Patna, being Holding No. 75 of circle No. 24, as the result of a decree in a partition suit between him and the remaining co-sharers. The decree was obtained in 1939 and the plaintiff got delivery of possession on 13th August 1940, by which he was put in possession of a separate takhta--with regard to the remaining 2 annas 10frac12; pies share a separate takhta was carved and allotted to the co-sharers.

3. It has been found that one Abdul Hakum, who was in charge of the management of the house on behalf of the original owners inducted the defendants as tenants by a kabuliat dated 27th October 1934--the period of the tenancy was from 1st November 1934, to 31st October 1935. On the expiration of the said term, the defendants held over as monthly tenants right up to the date when delivery of possession was obtained by the plaintiff for his 13 annas and odd share. On 28th March 1941, the plaintiff served a notice on the defendants to vacate his portion of the house by 30th April 1941. As the defendants failed to carry out the terms of the notice, the plaintiff instituted the suit giving rise to this appeal on 3rd May 1941, in which he alleged that the defendants became trespassers from 1st May 1941, and therefore liable to be evicted. The plaintiff also claimed arrears of house-rent at the rate of Rs. 60 per mensem from the date of delivery of possession up to 30th April 1941, together with interest thereon, damages at the rate of Rs. 3 per day from 1st May 1941 to 3rd May 1941, the date of the institution of the suit and mesne profits in future till delivery of possession.

4. The defendants denied the validity of the notice and pleaded that their tenancy had not been determined as alleged by the plaintiff. They further pleaded that, with the permission and sanction of the original owners, they had constructed two rooms and made some other improvements in the house at a cost of Rs. 869-8-0, that they were paying rents and municipal taxes and that the original proprietors had also taken loans from them. As a result of accounting, they alleged that on 1st September 1939, it was found that they had overpaid the original proprietors to the extent of Rs. 408-13- 0. The defendants further alleged that on a proper account being taken up to 30th June 1941, a sum of Rs. 608-8-0 was still due from the owners of the house and, indeed, the plaintiff agreed to pay up these dues in April 1941. Hence, it was pleaded that so long as these dues were not paid the defendants could not be ejected.

5. The trial Court came to the conclusion that the notice served upon the defendants was valid and legal and that the accounts given by the defendants as to their dues from the plaintiff was wrong and, as a matter of fact, nothing was due to the defendants. On these findings he passed a decree for the arrears of rent amounting to Rs. 367-14-6 with interest thereon in favour of the plaintiff, for damages at the rate of Rs. 2 per day from 1st May 1941, till 2nd May 1941, and future mesne profits from the date of suit till recovery of possession or three years from the date of the decision, viz., 23rd December 1943 whichever happens first, to be ascertained in later proceedings and for ejectment of the defendants.

6. The defendants appealed to the Additional District Judge of Patna, who, by his decision dated 28th January 1946, dismissed the appeal and affirmed the decision of the trial Court. The judgment of the appellate Court shows that the only questions argued before him were as to the validity of the notice served upon the appellants and whether the plaintiff was liable to the sums alleged to have been over-paid by the defendants. The appellate Court, while agreeing with the trial Court, also thought that even if it was a fact that Rs. 869-8 0 was still unpaid, the plaintiff was not bound in law to repay the same to the defendants.

7. Mr. S.N. Dutta on behalf of the appellants was not in a position to seriously contest the finding of facts concurrently arrived at by the Courts below. On a perusal of the judgments we are satisfied that it is impossible for us to interfere with them.

8. Mr. S.N. Dutta, however, argued that by the application of the provisions of the Control Order the defendants are protected from eviction. The Control Order was extended to Patna on 24th April 1942, and reliance is placed upon Section 13 of the Order which provides that:

No order for the recovery of possession of any house shall he made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this Order and performs the conditions of the tenancy.

Let it be assumed that the provisions of Section 13 are applicable to proceedings in the civil Court. The first difficulty that stands then in the way of the appellants is that the Control Order was not in existence on the date when the suit was filed and, secondly, the bar of the Control Order was not pleaded at the time of the trial the suit was decided on 23rd December 1943. Nor was the bar of Section 13 of the Control Order raised in appeal which was disposed of on 28th January 1946. Mr. Dutta, however, contended that as this was a question of law, it could be raised for the first time in second appeal. The appellant, however, can get relief only if it is held that the Control Order is retrospective. In Jagdamba Prasad Lalla v. Anadi Nath AIR 1938 Pat. 337 and in Tika Sao v. Hiralal AIR 1940 pat. 385 ., I endeavoured to lay down the principles that should be kept in view by the Courts when they are called upon to construe statutes which alter the existing law. Applying those principles, I am of opinion that the Control Order cannot be held to be retrospective in its operation. There is no provision in the Control Order that the enactment will apply to pending proceedings nor can I conclude from any of its provisions that we must infer a necessary retrospective intendment. This is unlike the position in AIR 1936 49 (Privy Council) , where their Lordships held that the provisions of Section 26N, Bihar Tenancy Act were retrospective and were made applicable in the last Court of appeal.

9. Again, in the present case, the tenancy of the defendants was determined as the result of a valid notice to quit and, therefore, on and from 1st May 1941, the defendants were in the position of trespassers. It may be observed that as the plea in bar was not raised at the trial, there is no finding in any of the Courts below whether the appellants were ready and willing to pay rent to the full extent allowable under the Control Order and perform the conditions of the tenancy. For these reasons I must overrule the first contention raised by Mr. Section N. Dutta.

10. Mr. Section N. Dutta then argued that the appellants are protected from eviction by the operation of ordinance II of 1946 and our attention is drawn to the definition of "tenant" in Section 2(h) that tenant "includes a person continuing in possession after the termination of the tenancy in his favour." Reliance is placed upon Section 11 of the Ordinance which lays down the conditions upon which a monthly tenant, as the appellants were, can be ejected. It is provided by Section 11(1)(a) that a monthly tenant can be ejected only for non-payment of rent or for a breach of the conditions of the tenancy and so on. This Ordinance came into force on 1st October 1946, that is to say, after the appeal was disposed of by the learned District Judge. For the reasons given above, I am unable to hold that this Ordinance has any retrospective effect.

11. Mr. L.K. Jha, who appears for the respondent, also argued that even if the Ordinance of 1946 is assumed to be applicable, the defendants cannot derive any advantage, because they, on the findings arrived at, have not paid any rent to the plaintiff ever since the 13th August 1940, up to the date of the hearing of the appeal before this Court. The learned advocate for the appellants submitted in reply that in pursuance of the order of the Registrar of this Court, the execution of the decree for eviction was stayed on the appellants depositing a sum of Rs. 3,000 and that, as the defendants have deposited that amount to the credit of the decree-holder in the Court below, it should be held that the defendants have paid rent to the plaintiff. I am unable to agree with this contention of the appellants because the amount deposited was merely a rough figure arrived at by the Registrar fixing the terms upon which the execution of the decree should be stayed. The rights of the parties were sub judice and had to be finally decided after the second appeal has been heard On this ground also the defendants are not protected from eviction.

12. Mr. L.K. Jha also argued that the definition of the word "tenant", as given in Section 2(h) of the Ordinance of 1946, cannot avail the appellants because ever since the 1st May 1941, the defendants were not tenants but trespassers in possession of the portion of the house belonging to the plaintiff. This argument is well founded because I do not find any expression in the Ordinance which would force me to apply this artificial definition of the word "tenant" to the state of affairs which did not exist on the date when the cause of action arose and when the suit was filed or when it was decided or when the appeal was decided by the lower appellate Court.

13. It may be observed that Ordinance II of 1946 was not in force on the date when the learned District Judge disposed of the appeal and is not in force to-day when we are disposing of the second appeal. This is an additional reason why Ordinance II of 1946 cannot be applied in favour of the appellants.

14. Mr. Section N. Dutta then relied upon the Act of 1947, which admittedly is in force to-day, upon the definition of the term "tenant" in Section 2(h) and on the provisions of Section 11(1)(a) thereof. These provisions are exactly the same as have been examined by me while considering the application of Ordinance II of 1946 and for the reasons given above, I must hold, in the first place, that the Act has no retrospective effect and, secondly, that neither Section 2(h) nor Section 11(1)(a) of the Act can be of any avail to the appellants. The result is that the appeal fails and must be dismissed with costs.

Imam J.

15. I have had the advantage of seeing the judgment which my learned brother proposes to deliver and I agree that the appeal must be dismissed. The only point which has, been urged in the appeal is that the decision of the trial Court directing the appellants to vacate the house within one month from the date of that Courts order failing which delivery of possession would be effected through civil Court was without jurisdiction having regard to the provisions of the Bihar House Control Order, 1942, and the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. The relevant provisions of the Order and the Act are to be found in clause 13 of the Order and Section 11 of the Act. Clause 13 of the Order states:

No order for the recovery of possession of any house shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this Order and performs the conditions of the tenancy.

Section 11(1) of the Act is as follows:

Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of Section 12, where a tenant is in possession of any building, he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise, except (a) in the case of a month to month tenant, for nonpayment of rent or breach of the conditions of the tenancy, or for sub-letting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment; and...

16. I shall first consider whether Clause 13 of the Order is a bar to the decision of the trial Court directing the defendants to vacate the building and on their failure to do so, delivery of possession would be effected through Court. For the purpose of this case I shall assume that clause 13 of the Order does apply to proceedings of a civil Court. I would, however, make it clear that I am not deciding that this clause of the Order does apply to proceedings of a civil Court. In my opinion the most important words of clause 13 of the Order are: "so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this Order". The principal defence was that the defendants, with the permission and sanction of the original owners, had constructed some rooms and made certain improvements in the house at the cost of a certain sum of money and that they were paying rents and municipal taxes and that the original proprietors had taken certain loans from them. After accounting, it was found on 1st September 1939 that the defendants had overpaid a certain sum of money to the original proprietors. It was further alleged by the defence that on an account being taken up to 30th June 1941, something more than Rs. 500 was found still due from the owners of the house and that the plaintiff had agreed to pay up these dues in April 1911. This defence had been disbelieved by the trial Court as well as by the lower appellate Court. As to whether the defendants had been paying rent and municipal taxes that was a question of fact. It has been held by both the Courts below that they had not been paying the rent. The very defence taken up by the defendants clearly shows that they never pleaded before the trial Court that they were ready and willing to pay the rent to the full extent allowable by the Order. It follows, therefore, that Clause 13 of the Order could not stand in the way of the trial Court deciding that the defendants must vacate the house and that on their failure to do so delivery of possession would be made through the Court. If Clause 13 of the Order were at all to apply, it must be found that either the defendants had paid the rent or they were ready and willing to pay the same. Since neither of these circumstances had been established the aforesaid clause of the Order was not applicable. Besides, as my learned brother has pointed out, neither before the trial Court nor before the lower appellate Court was it ever pleaded that the said clause of the Order was applicable.

17. Section 11 of the Act also is not applicable, for, on the findings, the defendants were tenants from month to month and had not paid the rent. If I have understood the submissions of Mr. Dutta correctly, they amount to this that since the appeal in this Court was a continuation of the suit the provisions of Section 11 were applicable. Until the appeal in this Court was decided, it could not be said that the suit had been finally decided against the appellants. I am of opinion, however, that Clause (1) of this section provides generally that a tenant shall not be evicted whether in execution of a decree or otherwise subject to the exceptions mentioned in that clause. The appellants were tenants from month to month and on the findings they had not paid the rent. Accordingly the exception mentioned in Sub-clause (a) of Clause (1) of the section was applicable and the appellants were not protected by the general provisions of Clause (l).

18. I agree with the judgment of my learned brother and I have expressed my opinion in view of the submission made by Mr. Dutta.