JUDGMENT
M.P. Kanade, J.
1. An interesting question to be determined in this appeal is as to whether the respondent is entitled to a decree for mesne profits for more than three years from the date of the decree. The question arises in the following facts and circumstances :
2. The plaintiff respondent filed Special Civil Suit No. 124 of 1954 against the defendant appellant for possession of the suit premises and for past and future mesne profits. Defendant contested the suit. The trial Court decreed the plaintiff’s suit on the following terms :
“The defendant to deliver possession of suit premises to the plaintiff after removing his own structure, if any, on or before 15th of July, 1957.
The defendant do pay to the plaintiff Rs. 2,700/- with future interest at Rs. 4% per annum from the date till realisation and costs of Rs. 300/- each. The first instalment shall become due on 15th June, 1957. In the case of default to pay any two instalments, the whole amount then due shall become payable. Enquiry as to future mesne profits is directed under Order XX, Rule 12(1)(c) of the Civil Procedure Code. The defendant do bear his own costs.”
3. The plaintiff feeling aggrieved by the said judgment and decree passed by the trial Court filed First Appeal No. 726 of 1957 in this Court. The defendant also filed First Appeal No. 727 of 1957 against the said judgment and decree passed by the trial Court. Both the appeals were heard together, and the plaintiff’s appeal was allowed with costs and the defendant’s appeal was dismissed with costs. However, the High Court increased the past mesne profits from Rs. 2,700/- to Rs. 7,400/- and with this modification, the decree for possession and enquiry for future mesne profits was confirmed by the High Court. The High Court passed the said decree on March 28, 1963.
4. It appears that the plaintiff, thereafter, filed Special Darkhast No. 70 of 1964 on April 24, 1964. In execution of the said decree, possession of the suit premises was handed over by the defendant to the plaintiff on January 21, 1969. It is thereafter the plaintiff filed an application for determination of future mesne profits of the suit premises from September 16, 1954 to January 21, 1969 i.e. for 14 years 4 months and 5 days. In the said application, the plaintiff had claimed past mesne profits at the rate of Rs. 200/- per month for a period of three years prior to the suit i.e. from September 15, 1951 to September 16, 1954. The plaintiff also prayed that he should be awarded future mesne profits at the rate of Rs. 600/- per month on the ground that the prices of the immovable property have been increasing constantly and nearby plot of the suit premises was let out at the rate of Rs. 550/- per month. The plaintiff further claimed that the suit premises have a frontage on the station road leading to the railway goods yard and is situated in an area which is prominent for business.
5. The said application of the plaintiff was resisted by the defendant by filing written statement at Exhibit 11. Defendant contended that the amount of mesne profits at the rate of Rs. 600/- per month claimed by the plaintiff against him is highly excessive. It is further contended by the defendant that the plaintiff will not be entitled to more rent that the rent fixed by the Court. Next, the defendant had taken a specific plea in the written statement that the plaintiff will not be entitled to mesne profits for more than three years and the application filed by the plaintiff is barred by law of limitation.
6. In support of the plaintiff’s contention, the plaintiff himself stepped into the witness-box as P.W. 1 and produced another witness Sadashiv Keshav Wangikar as P.W. 2. The defendant also stepped into the witness box and denied all the contentions of the plaintiff. The learned IV Jt. Civil Judge, Senior Division), Poona, after careful consideration of the evidence led by both the parties came to the conclusion that the plaintiff shall be entitled to Rs. 200/- per month by way of mesne profits. It is further held that the plaintiff is entitled to future mesne profits from the defendant from September 16, 1954 to January 21, 1969 at the rate of Rs. 200/- per month. Thus a decree for an amount of Rs. 34,440/ and costs of the application with future interest at Rs./ 6% per annum from the date of the decree till realisation, was passed. The decree further directed that it should be drawn on payment of Court Fee Stamp on the suit claim by the plaintiff. The said judgment was delivered by the lower Court on April 26, 1971. Against the said judgment and decree passed by the lower Court, the present first appeal has been filed by the original defendant challenging the validity and legality of the decree passed by the lower Court.
7. Mr. M.R. Kotwal, the learned Counsel appearing on behalf of the appellant, submitted that the decree for mesne profits at the rate of Rs. 300/- per month passed by the lower Court is erroneous and the rate of mesne profits is excessive having regard to the evidence on record. He further submitted that the mesne profits from the date of the institution of the suit i.e. from September 16, 1954 till handing over possession of the suit premises on January 21, 1969, could not have been awarded. The lower Court could award in law mesne profits for three years and that too from the date of the decree passed by the High Court on March 28, 1963, Shri Kotwal, the learned Counsel, further pointed out that there is Bombay Amendment to the provisions of Order XX, Rule 12 of the Code of Civil Procedure by this Court while exercising the powers under section 122 of the Code of Civil Procedure. The amendment is introduced on November 1, 1966. The said amendment is as follows :—
“R. 12. Decree for possession and mesne profits.—(1) Where a suit for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree-
a) for the possession of the property;
b) for the rent or mesne profits which have occurred on the property during the period prior to the institution of the suit, or directing an enquiry as to such rent or mesne profits;
c) directing an enquiry as to rent or mesne profits from the institution of the suit until-
(i) the delivery of possession to the decree-holder, or
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court.
(2) where an inquiry is directed under Clause (b) or Clause (c) of sub-rule (1) above, a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such enquiry.”
According to Shri Kotwal, the aforesaid amendment shall not apply to the facts of the present case, inasmuch as the decree was passed by the High Court on March 28, 1963. On the date of decree, there was no amendment to the provisions of Order XX, Rule 12 of the Code of Civil Procedure and, therefore, the said amendment can have no application to the facts of the present case. Secondly, it is contended by Shri Kotwal that the said amendment cannot have a retrospective operation, as it cannot affect the preliminary decree passed by the Court at the time when the amendment was not in existence. Admittedly, the amendment has been introduced to the said provisions on November 1, 1966. It is pointed out that in the present case even three year’s period as contemplated by the provisions of Order XX, Rule 12(1)(c) expired before the date of the amendment i.e. November 1, 1966. Shri Kotwal further contended that in a case of delegated legislation normally a retrospective effect should not be given unless it is so intended by the legislative enactment. According to Shri Kotwal, if the amended rule is properly construed it does not appear that it gives retrospective effect. In fairness to this Court, Shri Kotwal pointed out the case reported in Sadabai Manikchand Boa and another v. Nivrutti Vithoba Takale and others, 1979 Maharashtra Law Journal, 55; wherein it is held :—
“Order 20, Rule 12, Civil Procedure Code is only a procedural rule and the rule as amended by the Bombay High Court on 1-11-1966 doing away with the restriction of 3 years in the matter of mesne profits must be held to be in force retrospectively. The High Court had rule making power to amend the rule and even amend it retrospectively. The power of the executing Court which is regulated by Order 20, Rule 12 is a matter of merely procedural power in the execution of decree which is passed.”
According to Shri Kotwal, the view taken by the learned Single Judge of this Court, with respect, is not correct in law. It is submitted that once a preliminary decree is passed in favour of the plaintiff determining the rights between the parties in the suit, it would not be correct to say that the passing of a decree is merely procedural right of the parties.
8. Shri P.L. Naik, the learned Counsel appearing on behalf of the original plaintiff-respondent submitted that the provisions of Order 20, Rule 12 of the Code is a part of the procedural law and it deals with the procedure of the recovery of the mesne profits and no body can claim vested right in the matter of procedural law and it should always be construed that the same will have to be given a retrospective effect unless it is intended otherwise. It is further argued that the very purpose of the amendment in the provisions of Order 20, Rule 12 of the Code of Civil Procedure is to avoid multifariousness of the proceedings. The plaintiff would have been entitled to file a fresh suit even after expiry of period of three years from the date of the decree and claim future mesne profits. In order to avoid multiplicity of the proceedings, the High Court has introduced the amendment to the provisions of Order 20, Rule 12 of the Code of Civil Procedure. In support of his contention Shri Naik relied upon the judgment of this Court reported in Menkabai Mukundrao v. Manohar Mucundrao Deshpande, 73 Bom.L.R. 437. In the said case the respondent has challenged the power of the Court under section 122 of the Code of Civil Procedure, to amend explanation to Rule 1 of Order XXXIII. In the said case, the Division Bench held :—
“The addition made to the explanation to Rule 1 of Order XXXIII of the Civil Procedure Code, 1908, by the Bombay High Court is a mater relating to procedure and is not beyond the powers conferred on it by section 122 of the Code”.
9. Before we deal with this submission of Mr. Kotwal other pointed raised by Mr. Kotwal in respect of the quantum of mesne profits awarded by the lower Court in respect of the suit premises may be disposed of. It must be stated that so far as the past mesne profits are concerned, the High Court at earlier occasion in First Appeal No. 726 of 1957 held that the plaintiff was entitled to past mesne profits in respect of the suit premises at the rate of Rs. 200/- per month. In an enquiry under sub-clause (c) of Clause (1) of Rule 12 of Order 20 of the Code of Civil Procedure, the plaintiff, relying upon his evidence and another witness Sadashiv Keshav Wangikar, who is in service of Deccan Firewood and Charcoal Depot, tried to substantiate his claim for mesne profits at the rate of Rs. 600/- per month. Sadashiv Keshav Wangikar (P.W. 2) has stated :—
“The frontage of this plot is on the road which gives face to the railway goods yard from Narpart Giri Gate. Our depot is an possession of 10,000 sq.ft. of this plot. Now we pay rent of Rs. 500/- p.m. to Mahant Krishnanand Giri. It is at a distance of 100-150 yards from the yard.”
The said registered firm deals in firewood and charcoal on the wholesale basis. The said firms annual turn-over is 4 to 5 lakhs. The witness has given history of the litigation between the plaintiff on the one hand and the firm Deccan Firewood and Charcoal Depot on the other. It appears that the present plaintiff filed a suit against the said firm for possession of the premises. That matter was compromised between them. There was no application for fixation of standard rent of the said plot. They mutually agreed to fix the rent at Rs. 550/- per month as rent.
10. The area under dispute of the 7076 sq.ft. which was in wrongful possession of the defendant. This evidence has not been accepted by the trial Court on the ground that the suit plot admeasuring 7076 sq.ft. although belongs to the plaintiff, the defendant had not given it for the shop purpose to the defendant. It has came in evidence that the plaintiff takes the rent of Rs. 550/- per month from the Deccan Firewood and Charcoal Depot in the special circumstances and under pressure and, therefore, the rent fixed between the plaintiff and Deccan Firewood and Charcoal Depot cannot be taken into consideration to determine the mesne profits of the suit plot. The learned trial Judge has considered a lease-deed executed by Hirachand Jethamal for a plot admeasuring 3000 sq.ft. fixing rent of Rs. 100/- per month. Placing reliance on the said evidence of lease, the learned Judge doubled the rent and hold that the plaintiff is entitled to the rent at the rate of the Rs. 200/- per month, as far as the suit plot was concerned.
11. Shri Kotwal, the learned Counsel, pointed out that the defendant in his deposition stated that the area hold by Hirachand Jethamal is 33,000 sq.ft. and not 3000 sq. ft. and there is obvious mistake committed by the trial Court while fixing the rate of rent at Rs. 200/- per month. The defendant has not led any evidence or produced any oral or documentary evidence to show that the actual measurement of the said plot was 33000 sq.ft. The plaintiff in his evidence has denied the measurement of the said plot hold by Hirachand Jethamal as 33000 sq.ft. Apart from what has been held by the High Court with regard to the rate of rent, it is clear that the High Court at earlier stage held that the rate of the rent of the suit premises would be Rs. 200/- per month. That finding is binding on the parties and if the plaintiff could have led reliance evidence to show that the future mesne profits would be more than Rs. 200/-, it would have been possible for us to enhance the rate of rent in respect of the suit premises. In the absence of such reliable and cogent evidence, it is not possible to increase or decrease the rate of rent of the suit premises in view of the finding recorded by this Court in First Appeal No. 726 of 1957. Accordingly, we hold that the plaintiff is entitled to get the rent at the rate of Rs. 200/- per month for the suit premises by way of future mesne profits.
12. With regard to the second submission of Shri Kotwal, it must be stated that it is well founded. Admittedly, when the preliminary decree was passed by the High Court on March 28, 1963 there was no amendment to the provisions of Order 20, Rule 12 of the Code of Civil Procedure. It is true that the amendment to the said provisions was introduced on November 1, 1966. The rights and liabilities of the parties were determined by the preliminary decree, and the said decree was binding on the parties, as no further appeal was filed by the defendant. At the time of passing of the preliminary decree by the High Court, three years rule was very much in force. The Supreme Court in Chittoori Subbanna v. Kudappa Subbanna and others, , has observed that a decree under Rule 12 of Order 20 of the Code of Civil Procedure directing enquiry into the mesne profits, must be construed to be a decree directing the enquiry into the mesne profits in conformity with the requirements of Rule 12(1)(c) of Order 20, and that the decree-holder cannot get mesne profits for the period subsequent to March 7, 1941, when the three years period from the date of the High Court decree expired. In view of this judgment of the Supreme Court, it must be held that the decree passed by the High Court was in accordance or in confirmity with the provisions of Order 20, Rule 12(1)(c) of the Code. It means that the decree-holder was entitled to a decree for mesne profits for the period of three years, the plaintiff would not be entitled to recover any amount towards the mesne profits. In the present case, the three years period expired on or about March 28, 1966.
13. The second leg of argument of Mr. Kotwal is as to whether the amendment to the provisions of Order 20, Rule 12 of the Code should be given retrospective effect. On retrospective operation of statute a well settled position needs to be briefly referred to. Maxwell in his interpretation of statute, Twelfth Edition 1969 in chapter of Construction Most Agreeable to Justice and Reason has observed as follows :
“The statement of the law contained in the preceding paragraph has been so frequently quoted with approval that it now itself enjoys almost Judicial Authority.”
One of the most well-known statements of the rule regarding retrospectively is contained in this passage from the judgment of R.S. Wright, J. in Re Athlummey; “Perhaps no rule of construction is more firmly established than this, that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, under that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only”. The rule has, in fact, two aspects, for it involves another and sub-ordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.”
It is a fundamental rule of English 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. The High Court, undoubtedly, has got power to make the rules regulating the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the first schedule. Mr. Kotwal contended that this is delegated power and according to the Supreme Court as held in The Income-tax Officer Alleppey v. M.C. Ponnose and others, , such power cannot have retrospective operation. It was held :—
“where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operator. It will depend on the language employed in the statutory provisions which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the courts that the person or authority exercising sub-ordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect.”
This position of the statement of law was further confirmed in the decision of Hukum Chand v. Union of India, .
14. Apart from this clear position in law as stated by the Supreme Court on the question of retrospective of delegated legislation, we find that very language of section 127 of the Code of Civil Procedure excludes any retrospective operation of these rules. As observed earlier, under section 122 of the Code of Civil Procedure, High Courts may from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the first schedule. Section 125 of the Code further says that the High Courts, others than the courts specified in section 122, may exercise the powers conferred by that section in such manner and subject to such conditions as the State Government may determine. Provided that any such High Court may, after previous publication, make a rule extending within the local limits of its jurisdiction, any rule which have been made by any other High Court. Section 126 reads as under :—
“126. Rules to be subject to approval.—Rules made under the foregoing provisions shall be subject to the previous approval of the Government of the State in which the Court whose procedure the rules regulate is situate.”
The next section i.e. section 127 is of crucial importance in this matter. It reads as follows :—
“127. Publication of Rules.—Rules so made and approved shall be published in the Official Gazette, and shall from the date of publication or from such other date as may be specified have the same force and effect, within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the first schedule.”
In the exercise of powers under this section 127 of the Code, the rules framed by the High Court and approved by the State have been published in the Official Gazette on September 30, 1966; whereas the preamble of the said notification makes it very clear that the effect of the said rules shall be from November 1, 1966. The preamble of the said rules states as follows :
“The Honourable the Chief Justice and Judges, in exercise of the powers conferred by section 122 of the Code of Civil Procedure, 1908 (Act V of 1908) (hereinafter referred to as the “said Code”) and of all the powers enabling them in that behalf, and with the previous approval of the Government of Maharashtra, direct that with effect from the 1st day of November, 1966 all the amendments made so far by the former High Courts of Bombay, Nagpur and Hyderabad and by the High Court at Bombay to Schedule 1 (hereinafter referred to as the “said schedule”) of the said Code in exercise of the powers conferred on the said respective High Courts under section 122 of the said Code shall stand repealed and that any textual amendments made in the said schedule of the said Code by the said respective High Courts shall be deemed to have been rescinded so as to restore the said schedule of the said Code to the form in which it stands today after being amended from time to time by any competent legislature in its application to the State of Maharashtra (hereinafter referred to as the “said form”) and that with simultaneous effect from the said 1st day of November 1966 the amendments as indicated herein below be made to the said schedule of the said Code in the said form”.
From this Official Gazette, it is very clear that the said amendment was not intended to operate retrospectively. The amended rules have come into force from November 1, 1966. The very language of section 127 of the Code and the language used in the said notification makes it clear that the application of amended rules was prospective and the plain reading of that language of the said section as well as notification rules out any retrospective operation.
15. When enabling Act makes provision for previous approval of the Government and publication it becomes question of construction of relevant provisions whether the requirement is a condition precedent of operation of delegated legislation made under the Act. In section 127 of the Code it is clearly intended that the rules so made and approved by the State Government shall be published in the Official Gazette and shall from the date of publication or from such other date as may be specified have the same force and effect, within the local limits of the jurisdiction of the High Court which made them, as they had been contained in the First Schedule. It is, therefore, clear that such amended rules shall come into force from the date as may be specified on such date in this case is November 1, 1966. It is well settled that in the absence of an express or necessarily implied power to that effect, sub-ordinate legislation, be it a rule, a bye-law or a notification cannot have retrospective operation. The conclusion, therefore, is inevitable that the amendment made to Order 20, Rule 12 which came into effect on November 1, 1966 was not retrospective but was prospective in operation.
16. In another judgment of the Supreme Court, reported in Hukum Chand v. Union of India, , it is held :—
“Unlike sovereign legislature which has power to enact laws with retrospective operation authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the sub-ordinate legislation and the statue laws lies in the fact that a subordinate law making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled.”
17. Further it will have to be seen whether the amendment was intended to create a substantive right between the parties in a suit. As stated above, a right and obligation between the parties was determined by the decree in the suit. A substantive right is created by the decree itself in favour of the plaintiff and the liability imposed to pay the amount by way of mesne profits on the defendant. That right have been once decided by the Court having competent jurisdiction, it will not be open for the parties to say that vested right has not been created by the decree passed by the Civil Court. It is true that the amendment in the procedure would not create any substantive right in the parties. But in the present case, it is not merely a procedural right as prescribed by the provisions of Order 20, Rule 12, but it is crystallized rights between the parties in respect of claim of mesne profits. It is true that in Sadabai Manikchand Bora and another v. Nivrutti Vithoba Takale and others, (supra) Vaidya, J., observed that Order 20, Rule 12 of the Code is only a procedural rule and the rule as amended by the Bombay High Court on November 1, 1966 doing away with the restriction of 3 years in the matter of mesne profits must be held to be in force retrospectively. It is further observed that the High Court had rule making power to amend the rule and even amend it retrospectively. The power of the executing Court which is regulated by Order 20, Rule 12 of the Code is a matter of merely procedural power in the execution of decree which is passed. With respect, we are not in agreement with the view taken by Vaidya J. As stated above, at the time of passing of the decree, the Court must pass a decree within the ambit of the provisions of Order 20, Rule 12 of the Code of Civil Procedure. In the present case, at the material time, there was no amendment to the provisions of Order 20, Rule 12 of the Code when the decree was passed and on the date of the decree, the rights between the parties and the liabilities have been determined and, therefore, the decree creates a substantive right in favour of the parties in whose favour the decrees was passed. In this view of the matter, it must be held that the amendment to the provisions of Order 20, Rule 12 of the Code of Civil Procedure cannot be said to have retrospective effect. In view of the observations made hereinabove, this appeal will have to be partly allowed.
18. In the result, the appeal is partly allowed. The judgment and decree passed by the lower Court, dated April 27, 1971 in Special Civil Suit No. 124 of 1954, is set aside and the following decree is substituted :
“The defendant to pay to the plaintiff an amount of Rs. 2,700/- with future interest at the rate of 5% per annum from the date of decree till realisation of the amount. A decree should be drawn on payment of Court Fee Stamp on the suit claim, by the plaintiff.”
The defendant to pay the proportionate costs of this appeal.
