Khemchand Dayalji & Co. v. Mohammedbhai Chandbhai

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 808 of 1966. Appeal by special leave from the judgment and order dated September 3, 1965 of the Gujarat High Court in Civil Revision Application No. 244 of 1965. SUPREME COUllT l.BPOUS (1970J I S.C.R. Arun H. Mehta and/. N. Shroff, for the appellant. S. T. Desai,P. C. Bhartari, J.B. Dadachanji and 0. C. Mathur, for the respondent. The Judgment of the Court was delivered by SllU, J. The respondent is the owner of a house in the tow11 of Ahmedabad. The appellants arc the tenants of that house at a monthly rental of Rs. 2,171/-. Under the agreement of leiuc the appellants were to pay out of the agreed rent Rs. 810/- per month, and the balance was to be appropriated towards a loan advanced by them to the respqndent for constructing the house. The appellants had also agreed to pay municipal wes and electricity charges. The appellants filed suit No. 1308 of 1963 in the Court of the Small Causes, Ahmedabad, for an order, inter alia, determini11& the standard rent of the premises in exercise of the power under . s . .11 of the Bombay Rents, Hotel and Lodging House Rates Cmtrol Act 57 of 194 7.

The Court of Small Cause., Ahmedabad, on an awlication filed by the appellants fixed the contractual rent as "interun standard rent" and directed the appellants to pay the rent and municipal taxes. P.ursu~t to this order, the appellants deposited Rs. 2,403/- as rent and Rs. 8,921.25 due as municipal · taxea for the year 19(\4-65. An application by the respondent to withdraw the amount deposited in Court was resisted by the appellants. The Court permitted the respondent to withdraw IU. 2,403/- but not the municipal taxes. The respqndent the11 obtained an order for the issue of a distress warrant under s. 53 of the Presidency Small Cause Courts Act 15 of 1882 read with r. 5 of the Rules framed under the Bombay Rents, Hotel and Lodging House Rates Colltrol Act, 1947, for recovery of the 11mount due as municipal taxes. Distress was levied, and the order was confirmed. A revision application moved in the High Court ol Gujarat against that order was rejected.

In support of this appeal counsel for the appellants urges that r. 5 of the Rules framed under s. 49 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947, is ultra vires the State Government; that the Court of Small Causes Ahmedabad au in any event no jurisdiction to pass ah order issuing a distrels 'Warrant when trying a suit or proceeding under Bombay Act 57 of 194 7 especially when an application for determination of standard rent under s. 11 of the Act is ~ing; and that the municipal taxes and electricity charges do not constitute rent which may be recovered by the issue of a distress warrant. By the express terms of the tenl\l!Cy the appellants had undcr- 1akea to pay the municipal taxes and electricity charges as part of II 0 JI' II KHEMCHAND v. MOHAMMBDBHAI (Shah, J.) the rent : it is not open to them to contend that they are not rent reco'tlerable by the issue of a distress warrant. The last brancll of the argument has, therefore, no force.

The relevant provisions of the Bombay Ronts, Hotel aad Lodgllij: House Rates Control Act 57 of 194 7 and other statutes Yt'hich nave a bearing may first be noticed. Bombay Act 57 of 194 7 was intended to control rents and to confer protection against eviction upon tonants of premises in certain urban areas . in· the Province of Bombay. By s. 28 of the Act certain courts' 1!'ere designated as courts of exclusive jurisdiction to entertain and try suits and proceedings between a landlord and tenant, relat- • ing to recovery of. rent or possession to which the provisions Of the Act applied, ·and ·also to decide claims or questions arising under the Act. Section 28 as originally enacted aincl later amended by Bombay Acts 58 of 1949 and 15 ol f952, insofar as it is material reads: " ( 1)

Notwithiltandingj anything oontained in ·any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or "proceeding would not, but for this provision, be within itli jurisdiction, (a) in Greater Bombay, the CoUrt of Small Causes, Bombay; ( aa) in any area for which, a Court of Small Causes . is established under the Provincial Small Cause Courts, Act, 1887, such Court and (b) . ehall have jurisdictiQn to entertain and try any suit or proceedhlg between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with 8ili)' clainI or question· arising out ol this Act or any of its provisions and subject to the . provisions of subsection (2), no other \:(lurt shali have jurisdiction to entertain any such suit, proceeding or application or to deal. with such claim or question.

Section 28 did not set up new Courts to try suits . or proceedings between laincllords and tenants : it invested existing courts with exclusive jurisdiction to try suits and proceedings of the nature set out and claims or questions arising under the Act. Section 31 of the Act provides, inter alia, that the courts· specified in s. 28 · shall follow the prescribed procedure in trying and hearing suil8, proceedings, applicatiQDs and appeals and in executing orden ( 1970] I S.C.R. made by them. Section 49 authorises the State Government to make rules for the purpose of giving effect to the provisions of the Act and in particular to mali:e rules, among other subjects, for the procedure to be followed in trying or hearing suits proceedings (including proceedings for execution of decree; and distress warrants), applications, appeals and execution of orders. Pursuant to the authority conferred, rules were framed by the Government of Bombay and r.

5 which dealt with the procedure to be followed by the Court of Small Causes, Bombay, for suits, proceedings, appeals, etc. provided insofar as it is material : "In such of the following suits and proceedings as are cognizable by the Court of Small Causes, Bombay, on the date of the comina into force of these Rules, namely:- (1) ( 2) proceedings under Chapter VII and VIII of the Presidency Small Cause Courts Act, 1882, and (3) proceedings for execution of any decree or order passed in any such suit or proceedings, the Court of Small Causes, Bum bay, shall follow the practice a.nd procedure provided for the time being (a) in the said Act, except Chapter VI thereof, and (b) in the rules made under section 9 of the said Act." By the enactment of the Bomt>ay Reorganization Act 11 of 1960 a separate Sl'ate ol Gujarat was constituted out of the territory which formed the State of Bombay, and the area within the city limits of Ahmedabad formed part of the State of Gujarat.

By the Gujarat Adaptation of Laws (State and Concurrent Subjects) Order, 1960, cl. (a) of sub-s. (1) of s. 28 of Bombay Act 57 of 1947 as it was originally enacted was deleted. The Legislature of the State of Gujarat enacted the Ahmedabad City Courts Aet 19 of 1961 which by s. 17 provided that the Presidency Small Cause Courts Act, 1882 (XV of 1882), shall extend to and come into force in the City of Ahmedabad on and from tke appointed day. By s. I 8 it was provided : "The Presidency Small Cause Courts Act, (XV) of 1882), and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Born, LVII of 1947), shall in their application to the City of Ahmedabad stand amended in th~ manner and to the extent specified in the Schedule." By s. 19 it was provided : "With effect on and from the appointed day ..... . the Provincial Small Cause Courts Act, 1887 (IX of KliEMCHAND v. MOHAMMEDBHAI (Shah, J.)

85 1887), and all mles, notifications and orders made thereunder shall cease to apply to, or be in force, in the City ol Ahmedabad, By the Schedule certain amendments were made in the Presidency Small Cause Courts Act, 1882, in its application to the City of Ahmedabad. By cl. 13 of the Schedule, s. 50 of the Presidency Small Cause Courts Act was to apply to every prnce within the City of Ahmedabad. Certairi amendments were also made in s. 28 of the Bombay Rents, Hotel and Loclging House Rates Control Act, 1947, and in sub-s. (1) of s. 28, before cl. (aa) the following clause was inserted : " (a) in the City of Alunedabad, the Court of Small Causes of Ahmedabad," By the einactment of the Ahmedabad City Courts Act, 1961, the proceedings before the Court of Small Causes at Ahmedabad were governed b,Y that Act and by virtue of the amendment made in s.

28 of Bombay Act 57 of 1947 it became a Court of exclusive jurisdiction to try suits, proceedings, claims and questions arising under that Act. Being a Court governed by the Presidency Small Cause Courts Act, the Ahmedabad Court of Small Causes was competent to exercise, subject to the Ahmedabad City Courts Act, all the powers which a Presidency Small Causes Cour.t may exercise. Power to issue a distress warraint being expressly conferred by s. 53 of the Presidency Small Cause Courts Act upon the Courts governed by it, the Court of Small Causes, Ahmedabad, was competent to exercise that power. Rule 5 was framed under the Bombay Act 57 of 1947 in exercise of the authority conferred by s. 49(2)(iii). After the enactment of the Ahmedabad City Courts Act, 1961, r. 5 as originally framed by the Government ol Bombay continued in force by virtue of s. 87 of the Bombay·Reorganization Act 11 of 1960, lli!ld applied to the Ahmedabad Small Causes Court. When r.

5 was framed under Bombay Act 57 of 1947 it was not ultra vir11s, and it is not shown to have become ultra vir11s after the enactment of the Ahmedabad City Courts Act in its application to the City of Ahmedabad. The argument that s. 28 sets up a new set of Courts with special powers and jurisdiction is without substance. Section 28 merely confers upon the exis\iiilg Courts exclusive jurisdiction in respect of matters relating to rossession ol premises and recovery of reilt and to determine claims and questions arising under that Act. On ·that account it does not become a Special Court : it is a court which is competent to exercise all the powers which are conferred UpQ!l it by. virtue of its constitution under the statute which goyern,s it. The Court of Small Causes at Ahmedabad had, SUPRl!MI! COIJlt.T llBPORTS [1970]

I S.C.R. therefore, power to issue distress warrant and that power could be exercised even in respect of suits and proceedings which were exclusively triable by it by virtue of the Bombay Act 57 of 1947. We arc also unable to hold that so long as an application for fixation of standard rent is pending, the Court's jurisdictiqn to issue a distress warrant remains suspended. Until standard rent is determined, or an interim order is made, rent at the contractual rate is payable and process for recovery by distress warrant may always be adopted. Section i 1 ol Bombay Act 57 of 1947 confers upon the Court power to fix standard rent and permitted increases in certain cases. The Court is also competent to determine interim standard rent, and direct payment pcmi!ing final determination of standard rent.

The appellants applied for fixation of standard rent and invited the Court to pass an order firing interim standard rent and the Court of Small Causes proceeded to pass the order for payment of rent and municipal taxe;. In the present case there was an express order of the Court requiring the appellants to deposit in Court Rs. 810 /- per month and also to deposit municipal taxes. The Court of Small Causes ordered that the amount deposited by the amiellants towards municipal taxes shall oot be paid over to the llndlord. The amount was on that account not available to the respondent. The respondent wu unable to pay the taxes and the Municipality threatened to attach the property. The amount of muniCipal taxes was due and it was payable by the appellanta. Though deposited in Court, it could llOt be withdrawn by the respondent. The municipal taxes were, therefore, in arrears and a distress warrant could be applied for under s. 53 ol the Presidency Small Cause Courts Act by the respondent.

It was urged that the appellants had.to pay the amount ol interim staodard rent twice over : once when they deposited it in the Court and again when they satisfied the demand to avoid execution of the distress warrant. The landlord undoubtedly cannot obtain the amount twice over. But that docs not mean that when the tenant has not made the amount available to the landlord the application for distrcss was not maintainable. 1bc argument that the erroneous order passed by the Court of Small Causes preventing the landlord from recovctjng the amount of municipal taxes could have been got corrected by approaching the superior courts and so Jong as that order stood, no dmt. could be levied, ignores the fact that the appellants had = the Court of Small Call8CS to pass that order. In our there was no bar to the respondent maintaining the application for distress. The appeal fails and is dismilled with costs. O.C. A,,,.al dilrrtmei. r