Narayan, J.This is a plaintiffs second appeal arising out of a suit in ejectment. The plaintiffs-appellants sought the eviction of the defendant-respondent from a house in mahalla Marufganj, P.S. Malsalami, Patna City, bearing holding No. 30, and lying in circle No. 207, ward No. 30. Arrears of rent were also claimed from Fagun Badi 1, sambat 1999 to chait Sudi 15,2000. Notice to quit was alleged to have been served on the defendant.

2. The defence substantially was that the notice served on the defendant was not valid that the Court had no jurisidiction to try such a suit in view of the House Control Order of 1942 and that after the service of notice, the defendant paid municipal taxes for the house under an arrangement with the plaintiff that the amount paid as tax would be set off against the rent. It was contended that because of this payment, the notice of ejectment must be deemed to have been waived.

3. The Court of first instance decreed the suit, but on appeal, its decision was reversed by the Subordinate Judge of Patna. The learned Subordinate Judge found that the notice served was a valid one and that the House Contol Order had no application to this case. But he was of the opinion that the notice determining the tenancy must be deemed to have been waived because at the instance of the plaintiffs the defendant paid municipal taxes which had to be set off against the rent. The suit was according-, ly dismissed by the learned Subordinate Judge.

4. The contention on behalf of the plaintiffs appellants before us is that the Court below was-wrong in holding that the notice determining the tenancy had been waived on account of payment of certain municipal taxes by the defendant, and in my opinion this contention is well founded. There is no doubt the finding that an arrangement had been arrived at, according to which the taxes paid by the defendant had to be set off against the rent, but this arrangement had been arrived at before the notice of ejectment could be served. After the service of the notice, there was no further arrangement, and, consequently, if any tax was paid by the defendant after the service of the notice, that would not waive the notice. Under the Municipal law, the tax could be realised even from the occupant of a building, and unless it is shown that there was any further arrangement after the service of the notice, there cannot be any waiver of the notice, because after the service of the notice the tax could be realised from the occupant in the ordinary course. This point must, therefore, be decided in favour of the appellants.

5. But the respondents advocate has pointed out that in view of the Bihar Buildings (Lease, Rent and Eviction) Control Act 1947, and its predecessor, the Control Ordinance II of 1946, which came into force on 1st October 1946, the defendant-respondent cannot now be evicted from these premises. Section 2(1) of this Act lays down that:

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 in the case of a month to month tenant, for non-payment 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.

The word tenant has been defined in Section 2(h) of the Act and according to this Act it means:

Any person by whom, or on whose account, rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour.

Thus according to this Act, the defendant would be deemed to be a tenant even though under the ordinary law he would be deemed to be a trespasser after the service of notice on him. Mr. Jaleswar Prasad on behalf of the appellants has been at pains to show that this Act can have no application in this case inasmuch as the action was commenced long before this Act or its predecessor, ordinance II of 1946 came into force. It is no doubt a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. We have, therefore, to see whether a retrospective effect was clearly intended by the framers of the Act. In my opinion, if the different provisions of this Act are examined, there will be no doubt left that a retrospective effect was intended. Section 11, Sub-section (1) which says that a tenant shall not be liable to be evicted even in execution of a decree shows beyond all reasonbale doubt that the intention of the legislature was to make the Act retrospective. Along with it we have to consider that a different meaning has been given to the word tenant in this Act. Though 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 stood when the action was begun, yet where the language of the statute is clear enough to show that it was intended to vary such rights and that it was intended that the Act should have a retrospective operation, the Act must unquestionably be so construed even though the consequences may appear unjust and hard. Therefore, though some hardship has been caused to these appellants, the proper construction of the Act would be that it would apply in this particular case, in spite of the fact that the action was begun long before the Act came into force. I should here quote a passage from the judgment of Lord Hatherly in Pardo v. Bingham (1869) 4 Ch. 735, 740 which was quoted by Rankin C.J., in the case of Sadar Ali and Others Vs. Doliluddin Ostagar, . The passage runs as follows:

Baron Parke did not consider it an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed and said that the question in each case was, whether the legislature had sufficiently expressed that intention. In fact, we must look to the general scope and purview of the statute and at the remedy Bought to be applied, and consider what was the former state of the law, and what it was that the legislature contemplated.

What the legislature contemplated is amply clear from the different provisions of the Act as also from the preamble which says that it is expedient to regulate the letting of buildings, to control the rent of such buildings and to prevent unreasonable eviction of tenants therefrom in the province of Bihar. The Act is no doubt a extraordinary one, meant for abnormal times, but there it is and it has to be construe and applied strictly. We cannot at all agree with Mr. Jaleshwar Prasad that the jurisdiction of the civil Court is not ousted by this Act. Sub-section (2) of Section 11 of the Act, says that:

a landlord who seeks to evict his tenant under Sub-section (1) shall apply to the Controller for a direction in that behalf.

No doubt the Act does not say in so many words that the civil Courts will have no jurisdiction to entertain any suit in ejectment, but Sub-section (2) should be considered along with Sub-section (1) the language of which is:

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....

6. I am, therefore, of the opinion that we cannot pass any decree for ejectment in this suit. This appeal must fail. But Mr. Janak Kishore on behalf of the respondent has agreed to forego the costs throughout, and, therefore, the appellants will not be liable for the costs of this appeal as also of the Courts below.

7. The appeal is dismissed, but there will be no order for the costs of this appeal. The parties will bear their own costs throughout.

Imam J,

8. I agree. I should have thought that the Act in question did disclose the necessary intendment that it was retrospective. Section 11, Sub-section (1) is a general provision prohibiting the eviction of a tenant in possession of any building except on certain terms notwithstanding anything contained in any agreement or law to the contrary. The important words "he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise" clearly show that the Act was intended to apply to a situation where a decree had already come into existence, but its execution was prohibited. Sub-section (2) to Section 11 clearly indicates that in the matter of eviction of a tenant, the landlord shall have to apply to the Controller. Having regard to the general scope and purview of the statute and the words already referred to, I am clearly of the opinion that the Act was retrospective. In the circumstances, the suit having been dismissed by the lower appellate Court at this stage in second appeal, it will be impossible to give the appellants a decree for eviction of the defendant, no matter that the lower appellate Court erred on the question of waiver. I agree that the appeal be dismissed and to the order of my learned brother regarding costs.