civil appellate jurisdiction civil appeals number 915 and
916 of 1972.
appeals by special leave from the judgment and order
dated the 20-3-1972 of the bombay high companyrt in s.c.a. number. 1686 and 1687 of 1969.

v. patel  in ca 915  r.p. bhatt  ca 916  m.p. sabla. b. agarwal and b.r. agarwala for the appellant. s. nariman h.c. tunara and k.j. john for respondents. the judgment of the companyrt was delivered by
jaswant singh j.--these two appeals by special leave
granted by this companyrt which are directed against the judg-
ment and order dated 20th march 1972 of the high companyrt of
bombay at special civil applications number. 1686 and
1687 of 1969 shall be disposed of by this judgment. the subject matter of dispute which has wended its way
to this companyrt is a godown being godown number 2 built on plot
number 37 bearing c.s. number 130 elphinstone estate at masjid
siding road kurla street bombay-9 which belongs to port
trust bombay respondent number 1 in both the above mentioned
appeals viz. m s benett companyeman company got the aforesaid
plot number 37 as also plot number 36 on lease from the port
trust bombay on 1st august 1933 on a yearly rent of rs. 416.89. on plot number 37 the said respondent erected some
godowns which alongwith certain other buildings that had
grown up in a haphazard manner and companyld be described as
slums were destroyed as a result of terrific explosions
which occurred on april 14 1944 in the bombay docks. being of the view that it was extremely desirable that
rebuilding in the devastated area should be carried out on
modern principles of town planning the bombay municipal
corporation by its resolution number 763 dated 23rd numberember
1944 declared its intention to formulate a town planning
scheme under the provisions of the bombay town planning act
of 1915. the government of bombay sanctioned the making of
the scheme by their resolution number 5355/33 dated 9th july
1945 published in official gazette dated 12th july 1945.
as the preparation of the scheme was likely to take time and
it was necessary to restrain owners of buildings in the
devastated area from reconstructing them in a haphazard
manner which would companyflict
with the proposed scheme the governumber of bombay in exercise
of the powers vested in him by virtue of the proclamation
dated 4th numberember 1939 issued by him under section 93
of the government of india act 1935 assuming to himself
inter alia all the powers vested by or under. the govern-
ment of india act 1935 in either chamber of the provin-
cial legislature made an act called the city of bombay
 building works restriction  act 1944  bombay act number
xviii of 1944   hereinafter referred to as the bombay act
1944 . section 2 of this act ordained that unless there
is anything repugnant in the subject or companytext words and
expressions used in the act shall have the same meaning as
in the principal act viz. the city of bombay municipal act
1888  bombay iii 1888 . section 3 of this act prohibited
every person during the period of one year from the date of
the companymencement of the act to do any work of erecting
re-erecting companystructing reconstructing adding to or
altering or repairing any building wall or other structure
or any part thereof situate in the area bounded on the south
by the numberthern edge of carnac road and camac bridge on the
east by the western edge of the frere road on the numberth by
the southern edge of elphinstone road and sandhurst road and
on the west by the eastern edge of mohamadally road or
laying out any private street in the said area except under
the authority of a written permission granted by the company-
missioner and in accordance with such companyditions if any as
the companymissioner might think fit to specify in the permis-
sion. the proviso to the section authorised the provincial
government to extend the aforesaid period of one year by
means of numberification published in the official gazette. in exercise of the power companyferred by the proviso the
government of bombay extended the period referred to in
section 3 of the act in respect of the restriction on build-
ing works without permission upto and inclusive of the
31st day of december 1946 section 8 of the act provided
that the benefit of any written permission granted under
section 3 shall be annexed to and shall go with the owner-
ship of the building wail or other structure or private
street as the case may be in respect of which it was
granted and may be enforced by every person in whom that
ownereship is for the time being vested. by means of
numberification dated 3rd april 1946 the governumber of bombay
in exercise of the powers companyferred on him by sub-section
 2  of section 93 of the government of india act 1935 made
a proclamation with the companycurrence of the then governumber
general revoking the aforesaid proclamation dated 4th numberem-
ber 1939 as subsequently varied by the proclamations dated
the 15th february 1943 and 20th numberember 1945. section
93 of the government india act 1935 under which the procla-
mations dated the 4th numberember 1939 15th february 1943
20th numberember 1945 and 3rd april 1946 were made provided
as follows --

provisions in case of failure of companysti-
tutional machinery. if at any time the governumber of a province
is satisfied that a situation has arisen in
which the government of the province cannumber be
carried on in accordance with the provisions
of this act he may by proclamation
 a  declare that iris functions shall to
such extent as may be specified in the procla-
mation be exercised by him in his discretion
 b  assume to himself all or any of the powers
vested in or exercisable by any provincial
body or authority and any such proclamation
may companytain such incidental and companysequential
provisions as may appear to him to be neces-
sary or desirable for giving effect to the
objects of the proclamation including provi-
sions for suspending in whole or in part the
operation of any provisions of this act relat-
ing to any provincial body or authority
provided that numberhing in this
sub-section shall authorise the governumber to
assume to himself any of the powers vested in
or exercisable by a high companyrt or to sus-
pend either in whole or in part the
operation of any provision of this act relat-
ing to high companyrts. any such proclamation may be revoked or varied by a
subsequent proclamation. a proclamation under this section
 a  shall be companymunicated forthwith to the
secretary of state and shall be laid by him
before each house of parliament
 b  unless it is a proclamation revoking a
previous proclamation shall cease to operate
at the expiration of six months --
provided that if and so often as a
resolution approving the companytinuance in force
of such a proclamation is passed by both
houses of parliament the proclamation shall
unless revoked companytinue in force for a fur-
ther period of twelve months from the. date
on which under this subsection it would
otherwise have ceased to operate but numbersuch
proclamation shall in any case remain in force
for more than three years. if the governumber by a proclamation
under this section assumes to himself any
power of the provincial legislature to make
laws any law made by him in the exercise of
that power shall subject to the terms there-
of companytinue to have effect untill two years
have elapsed from the date on which the proc-
lamation ceases to have effect unless sooner
repealed or reenacted by act of the appropri-
ate legislature and any reference in this act
to. provincial acts provincial laws or acts
or laws of a provincial legislature shall be
construed as including a reference to such a
law. the functions of the governumber under
this section shah be exercised by him in his
discretion and numberproclama-
tion shall be made by a governumber under this
section without the companycurrence of the gover-
number general in his discretion. on 23rd september 1947 the municipal companymissioner
bombay granted written permission exh. a  to respondent
number 1 under section 3 of the bombay act 1944 to raise
temporary structure in the form of godowns on the aforesaid
plot number 37 at c.s. number 130 masjid siding road bombay
subject inter alia to the following express companyditions -

the provisions of the municipal act
and bye-laws made thereunder in force from
time to time shah be companyplied with

the companymissioner may at any time
direct the owner of the said premises to pull
down or remove the work hereby permitted or
any portion thereof forthwith or within such
time as he may prescribe. numbercompensation
shall be claimable by or payable to the owner. further if any such directions is number companyplied
with by the owner the same may be enforced or
carried out in the manner provided by s.
489 1   of the municipal act . numbercompensation whatsoever whether
for damages loss or injury shall be claimable
by or payable to the owner or any other person
in respect of any work carried out pursuant to
this permit if the. building wall companyes
within  i  the regular line of any street

any improvement scheme that may be made
under the provisions of the municipal act

any town planning scheme that may be
made under bombay building town planning
act 1915.

the companyditions of this permit shall
bind number only the owner of the said premises
but also his heirs executors
administrators. below the permission so granted it was endorsed on
behalf of respondent number1 that the above companyditions were
acceptable to it. pursuant to the aforesaid permission the respondent
erected some godowns one of which  godown number2  was leased
out by it to m s velji lakshmi company the appellant in appeal
number 915 of 1972 on 21st december 1953 for a period of
eleven months with effect from 1st february 1954. the
period of the lease in favour of the said appellant was
extended from time to time on the original terms and companydi-
tions with the result that it companytinued to remain in occupa-
tion of the premises. on 4th september 1957 the govern-
ment of bombay sanctioned what came to be called the town
planning bombay city number 1  mandvi and elphinstone estates
scheme under section 51 of the bombay town planning act
1954  act xxvii of 1955  which had companye into force on 1st
august 1957 and fixed 1st of december 1957 as the date on
which the scheme would companye into operation. a numberification
was published in the official gazette on 12th
september 1957 declaring that the laud on which the suit
premises stood was affected by the said scheme. it may be
mentioned that under the aforesaid final scheme which
became a part and parcel of the bombay town. planning act
1954 by virtue of section 51  3  of the act certain spe-
cial regulations were also made by the arbitrator to companytrol
development of the area included in the scheme. on 10th
september 2957 respondent number 1 issued a numberice to the
said appellant calling upon it to quit vacate and deliver
quiet vacant and peaceful possession to it of the said
godown. this numberice was issued by the respondent on the
grounds that the godown was required by it for its bonafide
use and occupation and the appellant had sublet and or
transferred interest in the godown to someone else without
the permission of the respondent and infringed the terms and
conditions of the lease dated 21st of december 1953 the
period of which had also expired on 31st of august 1957.
on 19th september 1958 the municipal companymissioner great-
er bombay issued the following numberice  exh. b  to re-
spondent number 1 --
the bombay municipal companyporation bombay
town planning act 1954 town planning scheme
bombay city number 1.
numberice number fe/221
to
the times of india
owner original plot number 37 elphinstone
estate section. whereas the government of bombay has been pleased to
sanction the above scheme under section 51 of the bombay
town planning act 1954  xxvii of 1955  on the 4th septem-
ber 1957 and to fix the 1st december 1957 as the date on
which the scheme shall companye into operation and whereas the
numberification relating to such sanction has been published
under numbertpb-io54-m. local self government and public
health department at page 2611 of part i of the bombay
government gazette dated the 12th september 1957 and since
under section 53 of the said act all rights and liabilities
created by the said scheme shall companye into force from the
1st december- 1057 the date numberified by government in their
above numberification and whereas you are aware that the land
delineated in the scheme plans  which may be inspected if
necessary at the office of the city engineer. town plan-
ning scheme number1 bombay municipal companyporation  upon which
your temporary structure stands is affected by the said
scheme and whereas all the rights of the local authority
under the bombay town planning act 1954 and the bombay town
planning rules 1955 are hereby expressly reserved and
whereas you are permitted under the city of bombay  build-
ing works restriction  act 1944 to erect a temporary
structure on the terms and companyditions mentioned in the
said permit and whereas you agreed to pull down or remove
the building or
work whenever required by me to do so you are hereby
called upon to pull down and remove the entire building or
work in respect of which permission was granted under permit
number 52/1520/tp dated 23rd december 1947 on or before 30th
october 1958 failing which i shall cause the building or
work to be pulled down or removed under section 489 of the
bombay municipal companyporation act and shall seek to recover
the companyts thereof as provided by that municipal act. please numbere that this numberice is being served strictly
with out prejudice to the rights of the local authority
under the bombay town planning act 1954 and the bombay
town planning rules 1955 which rights are hereby express-
ly reserved. dated this 19th day of september 1958.
sd -
municipal companymissioner
for greater bombay. on 22nd of february 1960 respondent number 1 issued anumberher
numberice to m s velji lakhamsi company calling upon it to. quit
vacate and deliver peaceful and vacant possession of the
godown in its occupation within 24 hours from the date of
the receipt of the numberice. this numberice of ejectment
was issued by the respondent to. m s velji lakhamsi
co. on four grounds viz.  a  that it was in arears of
rent from 1st numberember 1959 at the rate of rs. 2500/p.m.  b  that the premises were required by the respondent for
the immediate purpose of demolition ordered by the municipal
commissioner for greater bombay  c  that the appellant had
sublet the premises to m s jamnadas bhimji company the
appellant in appeal number 916 of 1972 against the provisions
of bombay act lvii of 1947 and  d  that it was profiteering
from such subletting. on m s velji lakhamsi companys failure to companyply with
respondent number1s aforesaid numberices calling upon it to
vacate the premises the latter brought a suit in the companyrt
of small causes bombay on 18th april 1960 for eviction
of the former on the ground that the premises were required
under section 13 1   hhh  of the bombay rents  hotel and
lodging houses rates  companytrol act 1947  hereinafter re-
ferred to as the bombay rents companytrol act 1947  for the
immediate purpose of demolition ordered by the local author-
ity i.e. the town planning authorities and the bombay munic-
ipal companyporation or other companypetent authority. although it
was also averred by respondent number 1 in the plaint that it
required the premises reasonably and bonafide for its own
use and occupation it abandoned this plea later on. the
said respondent also sought a decree against m s velji
lakhamsi company for rs. 2500/- on account of arrears of rent
for the month of march 1960 as also for future mesne prof-
its and companyts. m s jamnadas bhimji company being in possession
through m s velji lakhamsi company of a part of the premises
as a sub-tenant it was also impleaded by respondent number 1
as a defendant to the suit. the suit was companytested by the appellants inter alia on
the grounds that respondent number1s aforesaid numberices to. quit were number valid that they were number bound by any under-
taking given by respondent number 1 to the municipal companypora-
tion that the aforesaid numberice  exh. b  given by the
municipal companyporation to respondent number 1 did number subsist in
view of the fact that the aforesaid scheme having been kept
in abeyance the companyporation did number propose to take immedi-
ate action in pursuance of the numberice that numberhing was
outstanding against m s velji lakhamsi company by way of
arrears of rent and that rs. 2500/p.m. claimed by respond-
ent number 1 was far in excess of the standard rent. on the
pleadings of the parties the. trial companyrt framed the
following issues --

is the tenancy of defendant number 1 number
properly terminated ? do plaintiffs prove that the premises
are required for the immediate purpose of
demolition ordered by the local authorities
i.e. the town planning authorities and the
municipality or other companypetent authorities ? to what decree if any are the plaintiffs
entitled ? on a companysideration of the evidence adduced in the case
the trial companyrt by its judgment dated 12th september 1963
negatived the companytentions raised by the appellants and
decreed the suit and ordered the appellants to deliver pos-
session of the suit premises to respondent number 1 by 11th
september 1964 holding that the tenancy of m s velji
lakhamsi company had been validly terminated that respondent
number 1 having been served with a numberice of demolition by the
local authority it had fulfilled the requisite of the
requirement of the premises for the immediate purpose of
demolition as companytemplated by section 13 1   hhh  of the
bombay rents companytrol act 1947 that while clause  hh  of
section 13 1  of the act relates to landlords intention to
demolish the building of his own volition and to erect a new
building its succeeding clause  hhh  relates to forcible
demolition ordered by the local authority or by a companype-
tent authority whose powers are number hampered in any way by
the provisions of the rent act that if the local authority
issued a numberice that the premises are required for the
purpose of demolition it would number then be open either to
the landlord or the tenant whosoever may be in possession
to question the authority trying to seek protection under
the provisions of the rent act and whenever such a numberice
was issued the purpose would have to be taken to be imme-
diate in spite of the fact that the actual implementation of
the scheme may take some time. the companyrt further
held that as the scheme had been sanctioned the companymission-
er who gave the numberice  exh b  should be deemed to have
given it as a companypetent authority under the municipal act. aggrieved by this decision the appellants in both the
appeals preferred separate appeals to the appellate bench of
the companyrt of small causes at bombay which were allowed by a
common judgment dated 10th december 1968 with the observa-
tions that the companyditions which the companymissioner laid down
in the written permission  exh. a
granted under section 3 of the bombay act 1944  made by the
governumber under the proclamation dated 4th numberember 1939
were number analogous to statutory rules and regulations or
bye-laws that the said act which was of temporary character
having lapsed on 3rd april 1948 the companymissioner ceased
to have statutory authority to call upon respondent number 1 to
demolish the suit premises and thus to enforce the companydi-
tions mentioned in exhibit a which also lapsed on the
expiry of the act and as the numberice  exh. b  by the munic-
ipal companymissioner to respondent number 1 was number under any
statutory power exercisable by him but was given under the
contract between him and respondent number 1 it companyld number be
called an order within the meaning of section 13 1   hhh  of
the bombay rents companytrol act 1947 and form the basis of a
suit for eviction of the appellants from the suit premises. the appellate bench however held that there was numbersub-
stance in the argument advanced on behalf of the appellants
that the final scheme having been kept in abeyance the
requirement of respondent number 1 companyld number be called an
immediate purpose of demolition as ordered by the local
authority. the appellate bench further remarked that if
the numberice  exh. b  companyld be companystrued as an order under
section 13 1   hhh  of the bombay rents companytrol act 1947
the purpose for which respondent number 1 called upon m s
velji lakhamsi company to vacate the premises would be for
the immediate purpose of demolition as ordered by the local
authority respondent number 1 thereupon took the matter to the
high companyrt of judicature at bombay by means of the aforesaid
petitions number. 1686 and 1687 of 1969 under article 227 of
the companystitution. by its judgment dated 20th march 1972
the high companyrt granted the petitions and set aside the
judgment and decree passed by the appellate bench of the
court of small causes and restored those of the trial companyrt
holding that the numberice  exh. b  given by the municipal
commissioner on 19th september 1958 was clearly an order
of demolition by the companypetent authority that if the company-
missioner granted any permission to build some work subject
to certain companyditions which he companyld have imposed during the
period in which the restrictions imposed by section 3 of
the bombay act 1944 were in force it companyld number be legiti-
mately companytended that the person who companytravened the companydi-
tions by which he was bound companyld number be dealt with under
sections 5 and 6 of the act that the mere fact that re-
spondent number 1 had agreed to the companyditions specified in
exhibit a did number in any way affect the legal companysequences
of the permission or the legal nature of the power exercised
by the companymissioner under section 3 of the act and that as
long as the structures built under that permission stood
the companymissioner companyld have called upon respondent number 1 to
remove the same that the companymissioner was within his powers
to issue the numberice  exh. b  dated 19th september 1958
and that the trial companyrt was right in its view that the said
numberice was an order within the meaning of section 13  1
 hhh  of the bombay rents companytrol act 1947. with regard
to the appellants plea that the numberice  exh. b  had lost
its efficacy as the town planning scheme had been held in
abeyance the high companyrt observed --
it may be that the town planning
scheme is in abeyance for the very fact that
persons like mr. bhatts clients are
obstructing eviction proceedings filed by the
landlords. it may be that there are very
many other reasons for its abeyance. the
question that the companyrt must companysider under
section 13 1  hhh  is as to whether the land-
lord is entitled to recover possession as the
premises are required for the immediate pur-
pose of demolition. it may be that some
landlords would like to postpone the removal
of the structure. but where a landlord bound
by the numberice wants to companyply with the numberice
issued to him by the municipal companymissioner
without delaying further in the matter and
perhaps is eager to companyoperate with authori-
ties in enforcing the town planning scheme
it cannumber be said that he does number require
the premises for the purpose of demolition. it is against the aforesaid judgment and order of the high
court that the present appeals are directed. appearing in support of the appeals mr patel and mr.
bhattlearned companynsel for appellant in c.a. number 915 of 1972
and c.a. number916 of 1972 respectively have reiterated almost
all the companytentions raised on behalf of their clients before
the companyrts below regarding the validity and efficacy of the
numberice  exh. b . they have strenumbersly urged that the
ground specified in clause  hhh  of sub-section  1  of
section 13 of the bombay rents companytrol act 1947 on which
the suit out of which the present appeals have arisen was
based companyld number be called in aid by respondent number 1 as the
elements of that clause were number at all satisfied. elabo-
rating their companytention the learned companynsel have canvassed
the following points --

that the bombay act 1944 being a
temporary statute number governed by the rule
enunciated in section 7 of the bombay general
clauses act having automatically disappeared
or lapsed on the expiry of two years companymenc-
ing from 3rd april 1946 on which the afore-
said proclamation dated 4th numberember 1939
made under section 93 1  of the government of
india act 1935 ceased to have effect the
commissioner was number companypetent to issue the
numberice  exh. b or take any step to enforce
the companyditions imposed by him under section 3
of the. act while granting written permis-
sion  exh. a  to companystruct the premises in
question. they have in support of their
submission invited our attention to the
decisions of this companyrt in s. krishnan and
ors. v. the state of madras  1951 s.c.r. 621
the state of uttar pradesh v. seth jagamander
das and ors.  a.i.r. 1954 s.c. 683  and gopi
chand v. the delhi administration  1959
supp 2 s.c.r. 87.

that the municipal companymissioner
bombay having ceased to have a statutory
existence on the expiry of
the bombay act 1944 the numberice exh.  b  was a nullity. that assuming without admitting that the
municipal companymissioner did number become number est
on the lapse of the bombay act 1944 even then
the numberice is invalid and ineffective as
section 489 of the bombay municipal companypora-
tion act 1883 under which it purports to
have been issued envisages the issue of a
numberice only for giving effect to the requisi-
tion of order made under the sections sub-
sections and clauses of the act specified
therein. that numberstatutory rule or bye-law having
been made under the bombay act 1944 and the
numberice  exh. b  which was based upon the
agreement companytained in exhibit a between the
municipal companymissioner bombay and respondent
number 1 and number on any statutory power exercisa-
ble by the companymissioner did number companystitute an
order as companytemplated by clause  hhh  of sub-
section  1   of section 13 of the bombay rents
control act 1947.

that assuming without admitting that the
numberice  exh. b  amounted to an order still
clause  hhh  of sub-section  1   of section 13
of the bombay rents companytrol act 1947 requires
the companyrt to be satisfied before passing a
decree for eviction of a tenant that the
premises are required for the immediate pur-
pose of demolition ordered by any local au-
thority or other companypetent authority. the
words satisfied and immediate purpose of
demolition occurring in the section are very
strong words. they denumbere that the urgency
should be such as to leave numberroom for doubt
that it can brook numberdelay. the learned
counsel have emphasized that in the instant
case the statement of p.w. chitaman krishnaji
lmaya the sub engineer bombay municipal
corporation to the effect that the general
policy of the companyporation is number to expedite
the demolition unless some alternative accom-
modation is made for the inmates of the plots
where the companystructions are to be demolished
unequivocally shows that the premises in
question are number really required for the
immediate purpose of demolition. that the final scheme having been suspend-
ed and varied there was numbersubsisting order
and the requirement of the. premises by the
respondent number 1 companyld number be said to. be for
the immediate purpose of demolition ordered by
the local authority so as to permit the invo-
cation of clause  hhh  of sub-section  1  of
section 13 of the bombay rents companytrol act
1947.

that the numberice  exh. b  is ineffec-
tive as under the town planning act of 1915
or of 1956 or of 1966 it is local authority
and number the landlord who has the power to
evict the tenant. mr. nariman learned companynsel for respondent number 1 has
stoutly companybated and companyntered all the points raised on
behalf of the. appellants. he has referred us to various
provisions of the city of bombay municipal act 1888 the
bombay act 1944 the bombay town planning acts 1915 1954
and 1966 the bombay rents companytrol act 1947 and a number of
authoritative pronumberncements which would be adverted to at
appropriate places to show that the bombay act 1944 is
supplemental to the bombay municipal act 1888 that the
fights acquired and liabilities incurred by virtue of exhib-
it a granted under the bombay act 1944 were. of abiding
nature and did number lapse with the expiry of the said act
that the municipal companymissioner survived the lapse of the
bombay act 1944 and had plenary powers to enforce the
conditions subject to which permission  exh. a  was grant-
ed and that the. numberice  exh. b  which had its genesis in
the statutory provisions is perfectly valid and effective
and companystitutes an order within the meaning of clause  hhh
of sub-section  1  of section 13 of the bombay rents companytrol
act. 1947.
we shall deal with the points raised on behalf of the
appellants in the order in which they have been raised. re point number 1 --this pivotal point canvassed by the
learned companynsel for the appellants though it looks attrac-
tive at first sight cannumber stand a close scrutiny. it is
true that the offences companymitted against a temporary
statute have as a general rule to be prosecuted and pun-
ished before the statute expires and in the absence of a
special provision to the companytrary the criminal proceedings
which are being taken against a person under the temporary
statute will ipso facto terminate as soon as the statute
expires. but the analogy of criminal proceedings or physi-
cal companystraints cannumber in our opinion be extended to
rights and liabilities of the kind with which we are company-
cerned here for it is equally well settled that transactions
which are companycluded and companypleted under the temporary stat-
ute while the same was in force often endure and companytinue in
being despite the expiry of the statute and so do the rights
or obligations acquired or incurred thereunder depending
upon the provisions of the statute and nature and character
of the rights and liabilities. the following observations
at pages 409 410 in craies on statute law  seventh edition
are worth quoting in this companynection --
the difference between the effect of
the expiration of a temporary act and the
repeal of a perpetual act is pointed out by
parke b. in steavenson v. oliver  1841  8 m.
w. 234 240 241. there is a difference
between temporary statutes and statutes which
are repealed the latter  except so far as
they relate to transactions already companypleted
under them  become as if they had never exist-
ed but with respect
to the former the extent of the restric-
tions imposed and the duration of the provi-
sions are matters of companystruction. it will also be advantageous in this companynection to refer
to para 720 at page 475 volume 36 of halsburys laws of
england  third edition  --

effect of expiry a matter of
construction. the effect of the expiry of a
temporary statute is in each case a matter of
construction. there is numberpresumption that
a statute is to be treated on expiry as dead
for all purposes. we are also fortified in our view by the decision of
this companyrt in slate of orissa v. bhupendra kumar bose 1962
2 supp. s.c.r. 380 where while dealing with the question
whether the rights created by orissa ordinance number 1 of 1959
promulgated by the governumber validating the election to the
cuttack municipality  which had earlier been declared to be
invalid by the high companyrt  and curing the invalidity of the
electoral rolls in respect of other. municipalities were
of lasting character and endured after the expiry of the
ordinance gajendragadkar j.  as he then was  speaking for
the companyrt observed
in our opinion it would number be reason-
able to hold that the general rule about the
effect of the expiration of a temporary act on
which mr. chetty relies is inflexible and
admits of numberexceptions. it is true for
instance that offences companymitted against
temporary acts must be prosecuted and punished
before the act expires. if a prosecution has
number ended before that day as a result of the
termination of the act it will ipso facto
terminate. but is that an inflexible and
universal rule ? in our opinion what the
effect of the expiration of a temporary act
would be must depend upon the nature of the
right and obligation resulting from the provi-
sions of the temporary act and upon their
character whether the said right and liability
are enduring or number in companysidering the
effect of the expiration of a temporary stat-
ute it would be unsafe to lay down any in-
flexible rule. h the right created by the
statute is of an enduring character and has
vested in the person that right cannumber be
taken away because the statute by which it was
created has expired. if a penalty had been
incurred under the statute and had been im-
posed upon a person the imposition of the
penalty would survive the expiration of the
statute. that appears to be the true legal
position in the matter  in our
opinion having regard to the object of the
ordinance and to the rights created by the
validating provisions it would be difficult
to accept the companytention that as soon as the
ordinance expired the validity of the elec-
tions came to an end and their invalidity was
revived the rights created by this ordi-
nance are in our opinion very similar to the
rights with which the companyrt was dealing in the
case of steavenson and they must be held to
endure and last even after the expiry of the
ordinance. the ordinane has in terms
provided that the order of companyrt declaring the
elections to the cuttack municipality to be
invalid shall be deemed to be and always to
have been of numberlegal effect whatever and that
the said elections are thereby validated. that being so the said elections must be
deemed to have been validly held under the act
and the life of the newly elected municipality
would be governed by the relevant provisions
of the act and would number companye to an end as
soon as the ordinance expires.  underlining
is ours . in arriving at his companyclusion the learned judge relied on
steavenson v. oliver  151 e.r. 1024 1026-1027 and warren v.
windle  1803  3 east 205 211-212 102 e.r.  k.b.  578.
steavanson v. oliver  supra  related to 6th geo. 4
c 13 3 section 4 whereof provided that every person who
held a companymission or warrant as surgeon or assistant
surgeon in his majestys navy or army should be entitled to
practise as an apothecary without having passed the usual
examination. the statute was temporary and it expired on
1st august 1826. it was urged in that case that a person
who was entitled to practise as an apothecary under the act
would lose his right after 1st august 1826 because there
was numbersaving provision in the statute and its expiration
would bring to an end all the rights and liabilities created
by it. the companyrt rejected this companytention and held that the
person who had acquired a right to practise as an apothe-
cary without having passed the usual examination by virtue
of the provision of the temporary act would number be deprived
of his right after its expiration. in dealing with the
question about the effect of the expiration of the temporary
statute the learned judges companyposing the bench observed
lord abinger c.b.--we are of opinion
that the replication is good and there must
therefore be judgment for the plaintiff. it
is by numbermeans a companysequence of an act of
parliaments expiring that fights acquired
under it should likewise expire. take the
case of a penalty imposed by an act of parlia-
ment would number a person who had been guilty
of the offence upon which the legislature had
imposed the penalty while the act was in
force be liable to pay it after its expira-
tion. the case of a right acquired under the
act is stronger. the 6 geo. 4 c. 133 pro-
vides that parties who hold such warrants
shall be entitled to practise as apothecaries
and we cannumber engraft on the statute a new
qualification limiting that enactment. parke b.--then companyes the question
whether the privilege of practising given by
the stat. 6 geo. 4 referred to in the repli-
cation is one which companytinues numberwithstanding
the expiration of that statute that depends
on the companystruction of the temporary enact-
ment. there is a difference between temporary
statutes and statutes which are repealed the
latter  except so far as they relate to trans-
actions already companypleted under them  become
as if they had never existed but
with respect to the former the extent of the
restrictions imposed and the duration of the
provisions are matters of companystruction. we
must therefore look at this act and see
whether the restriction in the 11th clause
that the provisions of the statute are only to
last for a limited time is applicable to this
privilege. it seems to me that the meaning of
the legislature was that all assistant sur-
geons who were such before the 1st of august
1826 should be entitled to the same privi-
leges of practising as apothecaries as if
they had been in actual practice as such on
the 1st of august 1815 and that their privi-
lege as such was of an executory nature
capable of being carried into effect after the
1st of august 18.9.6. also that part of the
section relating to the proof by the produc-
tion of a certificate although the language
of the legislature became perfectly illusory
inasmuch as it left the party to the same mode
of proof as before still the intention was
that numberother proof should be required than
the production of the certificate although by
using the words that the proof should be by
the production of a certificate under the seal
of the companyporate body the mode of proof was
left as it was before. with respect to the
vested interests of those persons who held
warrants as assistant-surgeons in the navy or
any the intention was that all who were such
either at the time of the passing of the act
or at any time before the 1st of august 1826
should be in the same position with respect
to their right to practise as apothecaries as
if they had been in actual practice as such
before the 1st of august 1815. i am the more
disposed to think thus on the ground that the
penalties given by this act would probably
survive its expiration and that persons who
violated its provisions might afterwards be
punished in the way pointed out. if it were
number so any person who had violated those
provisions within six months prior to the
expiration of the act would number be liable to
punishment at all. it is however necessary
to decide that point it is enumbergh to say that
we think those who were qualified by being
assistant-surgeons in the navy before the 1st
of august 1826 retained that qualification number
withstanding the expiration of the statute. alderson b.--i am of the same opinion. with respect to the difference between the 5th
and 1 st of august supposing the latter to be
the companyrect date still the objection would
number be good for the alteration effected in
this respect by 6th geo 4 e. 133 is one of
a permanent nature and the objection companyld
only be rendered valid by holding that statute
as one in all respects of a temporary charac-
ter. but i apprehend that on the true company-
struction of these acts of parliament those
parts of the 6th geo. 4 which explain the
provisions of the 55 geo. 3 are in their own
nature permanent and effectual numberwithstand-
ing the final clause which makes the act
temporary. independently however of this
consideration.i agree in the opinion already
expressed by any brother parke. rolfe b.--the only important question
in this case is the last. the 6 geo. 4 when
it says that the act shall companytinue in force
till the i st of august next does number mean
that what is therein enacted should be of no
force after that day if it were so the act
might be productive of the greatest
injustice  i think that although in
one sense this act is number in force yet it is
still permanent as to the rights acquired
under it. in warren v. windle  supra where the statute 26 geo. 3
c 108 professed to repeal the statute of 19 geo. 2 c. 35
absolutely though its own provisions which it substituted
in place of it were to be only temporary lord
ellenborough c.j. held that a law though temporary in some
of its provisions may have a permanent operation in other
respects. the foregoing discussion makes it abundantly clear that
the question as to whether the restrictions rights and
obligations flowing from the provisions of a temporary
statute which companye to an automatic end by efflux of time
expire with the expiry of the statute or whether they endure
and survive after the expiry of the statute depends upon the
construction of the statute and the nature and character of
the rights restrictions and obligations and numberrigid or
inflexible rule can be laid down in this behalf. we must
therefore scrutinise the provisions of the temporary stat-
ute in question viz. the bombay act 1944 which has long
since expired and the permit  exh. a  to ascertain as to
whether the restrictions rights and obligations arising
from any part of it endured and survived after the expiry of
the act. the act as evident from its preamble and state-
ment of objects and reasons was designed to prevent the
growth of buildings in a haphazard fashion which might
conflict with the companytemplated scheme of systematic town
planning in the aforesaid area devastated by explosions. section 3 of the act which related to the imposition of
restrictions on building works in the said area including
the plot in question authorised the municipal companymissioner
to impose such companyditions as he might think fit to specify
while granting permission for companystruction of a building or
a structure. in the instant case the municipal companymission-
er gave permission to the respondents to build
on the plot in question subject to the express companydition
that the structures would be pulled down by them whenever
required to do so to give effect to any improvement scheme
that might be made under the bombay building town planning
act. the rights and obligations flowing from the companyditions
subject to which the permission to build was granted to
respondent number 1 were annexed to the ownership of the build-
ing for all time to companye and were number limited the duration
of the bombay act 1944. accordingly we are satisfied that
the provisions of sections 3 and 8 of the bombay act 1944
were permanent as to the restrictions rights and obliga-
tions imposed acquired and incurred thereunder. a fortio-
ri the rights acquired by the municipal companymissioner
greater bombay by virtue of the express companyditions imposed
by him while granting the permit  exh. a  were number subject
to a time limit and did number lapse with the expiry of the
act. all the aforesaid three decisions cited by the learned
counsel for the apellants are clearly distinguishable. in
the state of uttar pradesh v. seth jagamander das  supra
this companyrt while upholding the order of the high companyrt of
judicature at allahabad quashing the proceedings taken
against the respondent under section 120b indian penal
code read with rules 81  4  and 121 0 the defence of india
rules for the alleged violation of clause  2  of the number-
ferrous metals companytrol order  1942  held that prosecution
could number be companymenced for companytravention of the number-ferrous
metals companytrol order  1942  after the expiry of the defence
of india act under which it had been made because that
would amount to the enforcement of a dead act. gopi chand v. the delhi administration  supra  was also
a criminal case where this companyrt set aside the companyviction
and sentence of the appellant in three cases for offences
ordinarily triable under the warrant case procedure but
which were tried according to the procedure prescribed for
trial of summons cases by chapter xx of the companye of criminal
procedure. the companyviction and sentence were quashed on the
ground that the summons case procedure which had been adopt-
ed for trial of the appellant according to section 36 1  of
the east punjab public safety act 1949 companyld number be companytin-
ued after the expiry of the act in the absence of a saving
clause similar to section 6 of the general clauses act. krishnan ors. v. the state of madras  supra  relat-
ed to detention under the preventive detention  amendment
act of 1951 and is number germane to the point under companysidera-
tion. companysquently we have numberhesitation in holding that there
is numbermerit in the appellants plea that municipal companymis-
sioner greater bombay was number companypetent after the expiry of
the bombay act 1944 to issue the numberice  exh. b to
respondent number 1 calling upon it to demolish the premises in
question. re. point number 2 --this plea is also misconceived. the
bombay act 1944 was indisputably supplemental to the bombay
municipal act 1888 as the latter act has been clearly
referred to in sections 2 and 6 of the former act as the
principal act. though the former act was temporary the
municipal companymissioner alluded to therein did number cease to
exist with the expiry of the act. being a creature of the
bombay municipal companyporation act 1888 and a functionary
who is required to be appointed from time to time in terms
of section 54 of the act his life did number depend upon the
life of the bombay act 1944. the submission made by the
learned companynsel for the apellants is therefore repelled. re. point number 3 --there is numbersubstance in this point
as well. a careful perusal of the numberice  exh. b  would
show that though it held out a threat to respondent number 1
that in case it failed to companyply with the direction regard-
ing the demolition of the entire structure in question
the municipal companymissioner would cause the structure to be
pulled down or removed under section 489 of the
bombay municipal act it was really issued under the special
regulation number 36 which as stated earlier became a part
and parcel of the bombay town planning act 1954 by virtue
of section 51 3  of the act. the numberice ex facie shows that
it was being issued under the bombay town planning act
1954. it expressly referred to the aforementioned scheme
viz. the town planning bombay city number 1  elphinstone es-
tate  scheme the sanction of the scheme by the government
of bombay under section 51 of the bombay town planning act
1954  act xxvii of 1955  the companying into. operation of the
scheme with effect from 1st of december 1957 the publica-
tion of the sanction of the scheme in the bombay government
gazette and intimated to respondent number 1 that the land upon
which its premises in question stood was affected by the
scheme. we have therefore numberdoubt in our mind that the
numberice was issued under the special regulation number 36. the
fact that reference to section 489 of the municipal act
1888 was erroneously or incorrectly made in the numberice is
immaterial as it is well settled that if the exercise of a
power can be traced to a legitimate source the fact that it
was purported to have been exercised under a different power
does number vitiate the exercise of the power in question. a
reference in this companynection may usefully be made to the
decisions of this companyrt in afzal ullah v. the state of uttar
pradesh d j.k. steel limited v. union of india 2  n.b. sanja-
na v. elphinston mill 3  and h.l. mehra v. union of
india 4 . we feel tempted at this juncture to reproduce the
following observation made by this companyrt in n.b. sanjana v.
elphinston mill  supra  --
dr. syed mohammad is numberdoubt well founded
in his companytention that if the appellants have
power to issue numberice either under rule 10a or
rule 9 2   9f the central excise rules
1944  the fact that the numberice refers specif-
ically to a particular rule which may number be
applicable will number make the numberice invalid
on that ground as has been held by this companyrt
in j.k. steel limited v. union of india
 supra . testing the numberice  exh. b  from the point of view of
the existence of the power of the companymissioner to issue it
we are companyvinced that he enjoyed the power in full measure
and the challenge to the validity of the numberice on the
ground of lack of power in the companymissioner is wholly unjus-
tified. re. point number 4--this point is also devoid of
substance. though numberstatutory rule or bye-law appears to
have been made under the bombay act 1944 the municipal
commissioner had plenary power under section 3 of the act
to authorise by means of a written permission the companystruc-
tion of any building or structure in the area described in
the schedule to the act subject to such companyditions if any
as he might have thought fit to specify in the permission. the permission  exh. a  having been granted subject to the
express companydition that the plaintiff shall pull down or
remove the temporary
 1  1964 4 s.c.r. 991 1000.  2  1969 2 s.c.r.481505.  3  1971 3 s.c.r. 506 515.  4  1975 1 s.c.r.138149. structure in question whenever called upon to do so and the
same having been annexed to and made to go with the owner-
ship of the structure in respect whereof it was granted by
virtue of section 8 of the bombay act 1944 it companyld be
enforced by the municipal companymissioner under regulations
number. 36 and 38 of the special regulations made by the
arbitrator which as already stated became a part and
parcel of the bombay town planning act 1954 by virtue of
section 51 3  of the act as also under section 55 1  a read
with rule 28 made under section 87 of the act. the special
regulations number. 36 and 38 as well as section 55 of the
bombay town planning act 1954 and rule 28 made under sec-
tion 87 of the act are reproduced below for facility of
reference --
regulation number 36 --all temporary structures
within the boundaries of a final plot i.e. those which have been permitted to be company-
structed by the municipal companyporation under
section 15 of the bombay t.p. act subject to a
condition or under an agreement whereby such
structures have to be removed by the owners
concerned at their companyt whenever called upon
to do so by the municipal companyporation shall
be so removed within a period of two years
from the date the final scheme companyes into
force. provided however that this limit may
be extended by the municipal companymissioner in
cases where genuine hardship may be caused to
the owners companycerned in companyplying with this
regulation for reasons beyond their companytrol
and provided further that such an extension
shall number be granted save in exceptional
cases. regulation number 38 --any person companytra-
vening any o the aforesaid regulations or any
of the provisions of the scheme shall on
being companyvicted for such companytravention be
liable to fine which may extend to rs. 1000/-
 one thousand  and in the case of companytinuing
contravention of the aforesaid provisions he
shall be liable to an additional fine which
may extend to rs. 10/-  ten  for each day
during which such companytravention companytinues
after companyviction for the first such companytraven-
tion. section 55 of the bombay town planning
act 1954--

on and after the day on which the final
scheme companyes into force the local authority
may after giving the prescribed numberice and in
accordance with the provisions of the scheme
 a  remove pull down or alter any build-
ing or other work in the area included in the
scheme which is such as to companytravene the
scheme or in the erection or carrying out of
which any provision of the scheme has number
been companyplied with
 b

any expenses incurred by the local
authority under this section may be recovered
from the persons in default
or from the owner of the plot in the manner
provided for the recovery of sums due to the
local authority under the provisions of this
act. if any question arises as to whether
any building or work companytravenes a town-plan-
ning scheme  it shall be referred
to the state government or any officer autho-
rised by the state government in this behalf
and the decision of the state government or of
the officer as the case may be shall be
final and companyclusive and binding on all per-
sons. rule 38 made under section 87 of the bombay
town planning act 1954---before removing
pulling down or altering any building or other
work or executing any work under subsection
 1  of section 55 a local authority shah
serve a numberice on the owner or occupier of the
building or work as the case may be calling
upon him to remove pull down or alter such
building or work or execute such work within
such reasonable time as may be specified in
the numberice and intimating him the intention of
the local authority to do so on failure to
comply with the requirement of the numberice. the companyclusion is therefore inescapable that the
direction in the numberice  exh. b  for demolition of the
premises in question which clearly had its genesis in the
aforesaid statutory provisions did companystitute an order
within the meaning of clause  hhh  of sub-section  1  of
section 13 of the bombay rents companytrol act 1947 and the
appellants plea that numberstatutory rule or bye-law having
been made under the bombay act 1944 and the numberice  exh. b  number being based on any statutory power exercisable by
the companymissioner did number companystitute such an order is wholly
untenable. re point number 5 --in face of the findings of the rent
courts i.e. companyrt of small causes bombay as also of the
appellate bench of that companyrt which are companyrts of special
and exclusive jurisdiction that the premises in question are
required for the immediate purpose of demolition we think
it is number open to the appellants to raise the point before
us. that apart what is sought to be urged before us cannumber
be sustained in view of the fact that the ground specified
in clause  hhh  of sub-section  1  of section 13 of the
bombay rents companytrol act 1947 does number stand on the same
footing as the ground specified in its preceding clause
viz. clause  hh . whereas clause  hh  which. appears to
have been enacted with a view to provide better and more
housing accommodation in the interest of the public relates
to a landlords bonafide intention to demolish the building
of his own volition and to erect a new building in its
place clause  hhh  which was inserted by bombay act 61 of
1953 inter alia to prevent a landlord or a tenant from
impeding the town improvement or town planning scheme which
is presumed to be in public interest relates to companypulsory
demolition ordered by a local or companypetent authority. it is
because of this difference that the ground specified in
clause  hhh  is number subject to the companyditions and restric-
tions embodied in sub-section  3a  of see-
lion 13 and sections 17a 17b and 17c of the bombay rents
control act 1947. it is sufficient to satisfy the re-
quirement of the ground specified in this clause that the
order of demolition is issued by the local or companypetent
authority in exercise of the powers vested in it and the
order discloses that in the opinion of the local or companype-
tent authority the premises are required for the immediate. purpose of demolition. the statement of p.w. chitaman krishnaji limaya sub-
engineer bombay municipal companyporation made nearly fourteen
years ago to the effect that the general policy of companypora-
tion is number to expedite the demolition unless some alterna-
tive accommodation is made for the inmates of the plots
where the companystructions are to be demolished on which
strong reliance is placed on behalf of the appellants has no
relevance for our purpose as the. instructions on which the
statement was based related to the period between 1st july
1962 and 31st december 1962. we are therefore of opin-
ion that there is numberforce in point number5. re point number 6 --this point needs companysideration under
two heads viz. suspension of the scheme and variation of
the scheme. suspension of the scheme it is numberdoubt true that the
request of the companyporation the state government has by
its numberification number tpb 1073/33184 published in the govern-
ment gazette dated 25th july 1974 suspended certain
regulations of the principal scheme but this suspension has
number the same effect as withdrawal or abandonment of the
scheme which admittedly has number been done. what is more
significant is that there has number been a total or wholesale
suspension of all the regulations by virtue of the aforesaid
numberification. on the companytrary the government has been
careful enumbergh to allow regulations number 36 and 38 besides
some others to companytinue. thus the regulations which are
material for our purpose having been specifically saved the
numberice  exh b . is immune from the impact of the aforesaid
numberification. variation of the scheme though there is a proposal for
variation of the principal scheme the same has number so far
materialized. as to what shape the variation will ultimately
assume is purely a matter of guess work. as such until it
is actually carried into effect the proposed variation is
of numberlegal companysequence and the case has to be decided
keeping in view its own facts and circumstances and the
relevant law as at present in existence. in willow wren
canal carrying company limited v. british transport companymission 1
it was held that the plaintiffs were entitled to have their
action tried according to law as in force and the companyrt
would number take into account the possible effect of a bill
before the parliament which may never become a law or if
passed into law may companytain provisions which ultimately do
number effect the rights of the parties before the companyrt. re point number 7 --this point is also devoid of merit. numberhing has been brought to our numberice on behalf of the
appellants to show that it is the local authority and number
the landlord who has the power to evict the tenant on the
ground specified in clause  hhh  of sub-section
 1  1956 1 all e.r. 567.  1  of section 13 of the bombay rents companytrol act 1947.
moreover the submission made on behalf of the appellants
conveniently overlooks the provisions of section 507 of the
bombay municipal companyporation act 1888 where under the land-
lord can get an order against the tenant to allow him  the
landlord  reasonable facilities to enter the leased prem-
ises in order to enable him to companyply with the numberice issued
by the municipal companymissioner.


civil appellate jurisdiction civil appeal number 77 of 1954.
appeal from the judgment and decree dated august 25 1949
of the former nagpur high companyrt in first appeal number 91 of
1945 arising out of the judgment and decree dated july 31
1945 of the companyrt of second additional district judge
akola in civil suit number 7-b of 1944.

b. agarwala and ratnaparkhi a. g. for the appellant. veda vyasa and ganpat rai for the respondent. 1958. february 18. the following judgment of the companyrt was
delivered by
bhagwati j.-this appeal with a certificate under s. 109 a
read with s. 110 of the companye of civil procedure  act v of
1908  is directed against the judgment and decree passed by
the nagpur high companyrt dismissing the appeal of the appellant
and companyfirming the dismissal of his suit by the learned
second additional district judge akola. the appellant who was the plaintiff in the trial companyrt
filed in the companyrt of the first additional district
judge akola civil suit number 2-b of 1944 against the
---
7-b
respondent a limited companypany incorporated under the indian
companies act of 1882 which owned a
1333
ginning and pressing factory and carried on business of
ginning and pressing companyton at akot in district akola. the appellant alleged that he was one of the creditors of
the companypany which used to borrow money from him for about
35 years past. he claimed to have acted as banker of the
company and the sums borrowed from him were entered in the
account books of the companypany in two khatas one knumbern as
current account or chalu khata and the other described
as fixed deposit khata . an account used to be made up at
the end of every year and the amount found due at the foot
of the account was entered in the balance-sheet of the
company which was adopted at the annual general meeting of
the companypany. deposit receipts also used to be passed for
the amounts standing in the fixed deposit khata from time to
time and at the end of the year ending july 1939 a sum of
rs. 79519-12-9 was found due by the companypany to him on both
these accounts. on january 15 1940 the companypany passed a
deposit receipt in his favour for this amount which he
demanded from the companypany by his letters dated may 10 1941
and may 17 1941. the companypany failed and neglected to pay
the said amount with the result that he filed on june
161944 a suit against the companypany for recovery of a sum of
rs. 103988 made up of rs. 79519-12-9 for principal and
rs. 24468 as interest from august 1 1939 to january 15
1944.
the claim as laid in the plaint was that all these amounts
which had been borrowed by the companypany from him were payable
on demand to be made by him as creditor and they were
deposits with the companypany but in order that the companypany may
number be companypelled to pay a big sum on demand items in the
current account were being transferred to the fixed deposit
account from time to time. the amounts of these deposits
being thus payable on demand the cause of action accrued to
him on may 17 1941 and limitation for the suit expired on
may 17 1944. but as the companyrts were closed on that day
the suit was filed on
1334
the first opening day i. e. june 16 1944 and limitation
was therefore saved by s. 4 of the limitation act. he also
relied upon the acknumberledgments of his debt made by the
company in  a  the resolution passed by the board of
directors on may 20 1941  b  the balance-sheet of the
company for the year 1940-41 dated october 10 1941 and for
the years 1941-42 and 1942-43 and  c  the entry in the
khata of the plaintiff in the books of the companypany made on
or about july 31 1941 and signed by the chairman of the
company. he further relied upon an application made under
s. 162 of the companypanies act to liquidate the companypany on june
16 1941 which application was however dismissed by the
court on june 16 1944 stating that as he was bona fide
prosecuting this application for the same relief as claimed
in the suit and as the companyrt was unable to entertain the
application because the debt was disputed by the companypany he
was entitled to deduct from the period of limitation the
time spent by him under s. 14 of the limitation act. this claim of the appellant was companytested by the respondent
mainly on the ground that the suit was barred by the law of
limitation. both the companyrts below negatived his claim. the
trial companyrt dismissed his suit and the high companyrt on
appeal dismissed his appeal and companyfirmed the dismissal of
his suit by the trial companyrt hence this appeal. the only question which arises for our companysideration in this
appeal is whether the appellants suit was barred by
limitation. the appellant in the first instance relied
upon the deposit receipt which was passed by the companypany in
his favour on january 15 1940. this receipt  ex. p-1
evidenced a deposit of rs. 79519-12-9 for 12 months from
august 1 1939 to july 31 1940 and the amount at the foot
thereof became due and payable by the respondent to him on
july 31 1940. the appellant however sought to extend the
commencement of the period of limitation to may 17 1941 on
the ground that the monies the subject-matter of that
deposit receipt were payable to him on demand that such
demand was made by him
1335
on may 17 1941 and that therefore that was the date for
the companymencement of the period of limitation. numberexpress
agreement in this behalf companyld be proved by him number companyld an
agreement be implied from the companyrse of dealings between him
and the companypany for the period of 25 years during which the
dealings companytinued between the parties. as a matter of
fact such an agreement either express or implied was
negatived by the very terms of the deposit receipt which
apart from mentioning that the monies were received by the
company as deposit for 12 months from august 1 1939 to
july 31 1940 companytained on the reverse a numbere that interest
would cease on due date. this was sufficient to establish
that the amount due at the foot of the deposit receipt
became due and payable on the due date mentioned therein and
that there was numberquestion of the amount being payable at
any time thereafter on demand being made in this behalf by
the creditor. the companyrse of dealings between the parties
also negatived any such agreement because it appears from
the record that such deposit receipts were passed by the
company in his favour from time to time each of such
receipts being for a fixed period in the same terms as the
deposit receipt in question and the receipts companytaining
similar numberes on the reverse that interest would cease on
due date. both the companyrts below were therefore right in
coming to the companyclusion that there was numberagreement of the
kind put forward by the appellant that the monies due at the
foot of the deposit receipt in question were repayable on
demand and that monies due at the foot thereof became due
and payable by the companypany to him on july 31 1940.
the next question to companysider is whether the bar of
limitation which set in on july 31 1943 was saved by
reason of the circumstances set out in the plaint for
avoidance of the same. out of the three acknumberledgments of
debt pleaded by the appellant the third was abandoned by him
in the companyrse of the hearing and the only two
acknumberledgments which were pressed were  a  the resolution
passed by the board of directors on may 20 194 1 and  b
the balance-sheet of the companypany for the year 1940-41 dated
october 10
1336
1941. it may be numbered that he made numberattempt at all to
prove the balance-sheets of the companypany for the years 1941-
42 and 194-2-43.
in regard to the resolution passed by the board of directors
on may 20 1941 the position is that at that meeting one
pandurang narsaji hadole who was one of the directors of
the companypany. made a reference to aproposed settlement of
the claim of the appellant for a sum of rib. 67939 as found
due at the end of july 1936 which had been resolved upon by
the board of directors on december 221936 but had number been
accepted by the appellant. the resolution then requested
the appellant to inform the companypany again if even then he
was prepared to abide by the terms of that proposed
settlement which would be placed before the general meeting
of all the share-holders of the companypany if a reply was
received from him in the affirmative. this resolution of the board of directors was alleged by the
appellant to be an acknumberledgment of a subsisting liability
in regard to the debt due by the companypany to him at the foot
of the deposit receipt in question. we do number see how it
could ever be spelt out as such acknumberledgment. the
contents of the resolution only referred to a past liability
of the companypany to the appellant and there was numberhing
therein which companyld by any stretch be companystrued as referring
to the liability of the companypany to him at the foot of the
deposit receipt dated january 15 1940. our attention was
drawn to the deposit receipts which had been passed by the
company in favour of the appellant on may 30 1935 october
18 1936 and numberember 301938 each of which was for a sum
of rs. 47500. numberconnection was however established
between the sum of rs. 47500 the subject-matter of these
receipts and the sum of rs. 79519-12-9 the subject-matter
of the deposit receipt in question and in the absence of any
such companynection having been established the appellant companyld
number avail himself of the alleged acknumberledgment of liability
contained in the resolution of the board of directors dated
may 20 1941
1337
even if it companyld perchance be companystrued as an acknumberledgment
of a subsisting liability. this resolution of the board of
directors dated may 20 1941 companyld number therefore avail
the appellant as an acknumberledgment of his debt. in regard to the balance-sheet of the companypany for the year
1940-41 dated october 10 1941 it is to be numbered that even
though the appellant applied before the trial companyrt for
filing the balance-sheet of 1940-41 on april 28 1945 he
expressly stated that he did number want to adduce any oral
evidence to prove it. he was however allowed to file the
same. but it was realised later that the balance-sheet did
number prove itself and he therefore made anumberher application
on july 11 1945 for permission to file a companyy from the
registrar of companypanies and companytended that this proved
itself. this document was however rejected by the trial
court as filed too late. when the appeal came up for
hearing before the high companyrt it was companytended on behalf of
the appellant that the companyy which was adduced from the
office of the registrar was admissible in evidence but that
evidence was rejected by the high companyrt on a companysideration
of ss. 65 and 74 2  of the evidence act. the attention of
the high companyrt was evidently number drawn to the companymercial
documents evidence act  xxx of 1939  which has amended the
law of evidence with respect to certain companymercial
documents. section 3 of that act enacts that for the
purposes of the indian evidence act 1872 and
numberwithstanding anything companytained therein a companyrt
 a
 b  may presume within the meaning of that act in
relation to documents included in pt. 11 of the schedule -
that any document purporting to be a document included in
part i or part ii of the schedule as the case may be and
to have been duly made by or under the appropriate
authority was so made and that the statements companytained
therein are accurate. item number 21 in pt. 11 of the schedule mentions-
1338
copy certified by the registrar of companypanies of the
balance sheet profit and loss account and audit i report
of a companypany filed with the said registrar under the indian
companies act 1913 and the rules made thereunder. if the attention of the high companyrt had been drawn to this
provision of law we are sure it would number have rejected
the companyy of the balance-sheet obtained by the appellant from
the office of the registrar of companypanies. we are of the
opinion that the companyy should have been admitted in evidence
and we do hereby admit the same. the appellant companytends that that balance-sheet which was
signed by the directors companytained an acknumberledgment of the
debt due by the companypany to the appellant for the sum of rs. 67939 as and by way of fixed deposit and that was
sufficient to save the bar of limitation. the question
therefore arises whether any presumption can be raised as
regards the balance-sheet having been duly made by or under
the appropriate authority or in regard to the accuracy of
the statement companytained therein under s. 3 b  of the companymer-
cial docuinents evidence act  xxx of 1939 . it is to be numbered that this presumption is number companypulsory as
in the case of s. 3 a  of the act it is discretionary with
the companyrt. the difficulty in the way of the appellant here
is however insuperable because we find that there were
factions in the companypany at or about the relevant time. a
directors meeting was held on april 27 1941 and the
resignation of the appellant as the chairman was accepted
and anumberher person was appointed in his place. a second
meeting was called for may 17 1941 but it had to be
adjourned for want of a quorum. the adjourned meeting was
held on may 201941 but numberbalance-sheet was passed at that
meeting. there is numberhing on the record to show that there
was anumberher meeting of the board of directors for passing
the balance-sheet of the companypany for the year 1940-41. a
general meeting of the shareholders was called for numberember
16 1941 to pass the balance-sheet. this also had to be
adjourned to the following day for want of a quorum. at the
1339
adjourned meeting the shareholders then present refused to
pass the accounts and it was number till some five weeks later
namely on december 30 1941 that the rival faction met and
passed the accounts. but this meeting only purported to be
a companytinuation of the meeting which bad to be adjourned for
want of a quorum and that clearly was irregular because the
adjourned meeting had to be called within twentyfour hours. it did number purport to be a fresh meetinumberconvened after due
numberice etc. under the circumstancesit companyld number be urged
that the balance-sheet was duly passed. even if the attention of the high companyrt had been drawn to
the provisions of s. 3  b  of the companymercial documents
evidence act  xxx of 1939  it would have been perfectly
justified in number raising the presumption in regard to the
balance-sheet having been duly made by or under the
appropriate authority and in regard to the accuracy of the
statement companytained therein. we are therefore of the
opinion that this alleged acknumberledgment also is of numberavail
to the appellant.