Firm of Harbanslal Jagmohandas & ANR
Vs. Prabhudas Shivlal  INSC 114 (16 April 1971)
CITATION: 1973 AIR 2056 1971 SCR 397 1971 SCC
Practice and Procedure-Application for
special leave to this Court Averment giving impression that attention of High
Court was drawn to the conflicting decision of another High Court, when in fact
it was not so drawn-Grant of leave-If may be revoked on the ground that this
Court was misled.
The respondent who was the landlord of
certain premises in Surat, filed a suit for the eviction of the petitioners,
who were the tenants, on the ground of nonpayment of rent.
The petitioners filed a written statement in
which they raised a dispute regarding the standard rent, and also con- tended
that they had raised such a dispute, within the time allowed by law that is,
one month of service of the suit notice., The trial court as well as the
appellate court found that a dispute regarding standard rent was not raised
within one month of service of the suit notice and held, following a decision
of the Gujarat High Court, that the respondent was entitled to recover
possession under s.
12(3)(a) of the Bombay Rents, Hotel and
Lodging House Rates (Control) Act, 1947. The High Court of Gujarat also
rejected the petitioners' revision petition. Thereupon, the petitioners filed
an application in this Court, for special leave, contending that the High Court
of Bombay had held that it was sufficient if the dispute regarding standard
rent was raised in the written statement, and that, in such a case eviction
could not be ordered under s. 12(3) (a); and since there was a direct conflict
between the High Courts of Gujarat and Bombay an important question of law
relating to the scope and applicability of s. 12(3) (a) arose. This Court
granted special leave and stay.
The respondent filed an application for
revocation of the grant of special leave on the ground that the averments in
the special leave petition gave the impression that the attention of the
Gujarat High Court was drawn to the decision of the Bombay High Court, while in
fact, it was not so, and that therefore the petitioners had misled this Court.
HELD: Assuming that the grounds in the
special leave application gave the impression that the attention of Gujarat
High Court was drawn to the decision of the Bombay High Court, it could not be
stated that there was any misstatement or untrue averment in the grounds. The
contention raised was a legal contention, and there was no other manner in
which a party could draw the attention of this Court to the conflict between
the two High Courts.
It is but proper that if a party wants to
have a particular legal position settled in a High Court, reconsidered on the
basis of a different view taken by another High Court, he should draw the
attention of the High Court, when the question is raised, to the conflicting
decisions. Even if he has omitted to do so it cannot be said that when the
correctness of the judgment so given, is concerned before this Court he should
not be allowed to challenge the decision on the ground that another High Court
has taken a different view. Such A ground on a legal point should not be
confused 398 or mixed up with averments regarding material facts or matters of
importance. [405G-H; 406A-C].
The statements in the special leave petition
could not be considered to be untrue or false on material facts or matters of
importance, and therefore, the prayer for revoking the special leave would have
to be rejected.
CIVIL APPELLATE JURISDICTION: Civil Misc.
Petition Nos, 854 and 2282 of 1971.
Applications for stay and for amendment of
the prayer in C. M. P. No. 854 of 1971.
Civil Appeal No. 28 2 of 1971.
Appeal by special leave from the judgment and
order dated December 22, 1970 of the Gujarat High Court in Civil Revision
Application No. 1353 of 1970.
S. T. Desai, S. V. Tambwekar for S. K.
Dholakia, for the petitioners and appellants.
I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by
Vaidialingam, J.-The petitioners in both these applications have taken on lease
the ground floor portion of property in Ward No. V. Nondh No. 1088 of Surat.
The respondent became the owner of the said property by purchasing it from the
previous owner by a registered sale deed dated September 18, 1958. The
petitioners who were the tenants of the premises even prior to the date of
purchase by the respondent, have continued to be his tenants and they are using
the premises for their business purposes. The respondent landlord filed on
February 12, 1967 a civil suit No. 144 of 1967 in the court of the Third Joint
Civil Judge, Junior Division, Surat for evicting the petitioners.
According to the landlord the petitioners had
not paid the rent for a period of over six months and had also not complied
with the notice issued under Section 12 of the Bombay Rents Hotel and Lodging
House Rates (Control) Act 1947 (Act 57 of 1947) (hereinafter called the Bombay
Rent Act). The respondent had alleged that he had terminated the tenancy of the
petitioners by notice dated November 24, 1966. The respondent sought eviction
of the petitioners on two grounds namely, (1) default in payment of rent, and
(2) premises being required for bonafide personal use and occupation.
The petitioners contested the suit on various
grounds and denied that they were in arrears and pleaded that they had raised a
dispute in respect of the standard rent within the time allowed 399 by law They
also contended that the landlords requirements for use of occupation-was not
bonafide Both the trial court as well as the appellate : Court the Extra
Assistant Judge, surat, have concurrently rejected the plea of the respondent
that he required the promises bonafide for personal use. Both the courts held
that the petitioners have not raised any dispute about the standard rent within
one month of service of suit notice either by preferring a standard rent
application or by sending, a reply to them, suit: notice raising such a
dispute. : On this basis both the courts hold that the respondent-plaintiff is
entitled to recover possession of the premises on the ground of, nonpayment of
rent under Section 12 (3) (a) of the Bombay Rent Act and accordingly passed an
order directing eviction of the petitioners from the suit, premises.
The petitioners filed Civil, Revision
Application No. 1353 of 1970 before the Gujarat High. Court challenging the
decision of the two subordinate courts ordering their eviction. The High Court
summarily rejected the said application by its order dated December 22, 1970.
The petitioners filed Special Leave Petition
No. 342 of 1971 seeking special leave to appeal against the decision of the
Gujarat High- Court. In the special, leave petition it has been stated that the
appeal raises important the of law relating to the scope ,and applicability of
Section 12 (33) (a) of the Bombay Rent Act, which applies in all material
particular& to both the States of Maharashtra and Gujarat.
It has been further stated that there is a
direct conflict regarding the interpretation of this section between the Full
Bench of the Bombay High Court and the Gujarat High Court.
According to the petitioners, the Bombay High
Court has held that the matter will not fall under. Section 12 (3) (a) even in
those cases where a dispute in respect of standard rent has been raised in the
written statement, whereas the Gujarat High Court has held to the contrary and,
therefore, there is a direct conflict between the two High Courts on this
point. Along with the special leave petition the petitioners have filed C. M.
P. No. 854 of 1971 praying for the stay of operation of the order of the
Gujarat High Court in Civil Revision Application No. 1353 of 1970. In view of
the conflict between the Bombay and Gujarat High Courts regarding the interpretation
of the above section, this Court granted special leave by its order dated
February 15, 1971. This Court further granted exparte stay pending disposal of
the notice of motion, which was made returnable within three weeks.
The respondent entered appearance and filed
his counter- affidavit in C. M. P. No. 854 of 1971. In the counter- affidavit
the respondent has made two prayers, namely, (1) to revoke the 400 special
leave granted to the petitioners and (2) to dissolve the order of stay granted-
exparte. In order to, clarify the Prayers made in C.M. P. No. 854 of 1971, the
petitioners have filed C. M. P. No, 2282 of 1971 requesting permission to amend
their original application C. M. P. No: 854 of 1971 by stating that the relief
asked for is for stay of eviction of the petitioners from the suit premises and
to grant, stay of operation of the judgments of the trial court as well as of
the Appellate Court. Reading the two applications it is clear that the
petitioners seek relief from dispossession pending the disposal of the appeal
by this Court. We will deal with the prayers for grant of stay of dispossession
after disposal of the plea raised by the respondent that the Special leave
granted by this Court should be revoked. The grounds on which the respondent
requests for cancellation of special leave are that the petitioners have
completely misled this Court in regard to the true facts of the case and that
they are guilty of suppressio veri or suggestio falsi.
The bone of contention in this regard as pointed
out by Mr, 1. N. Shroff, learned counsel for the respondent is that the Full
Bench decision of the Bombay High Court, which is stated to be in direct
conflict with the decision of the Gujarat High Court has never been placed
before the Gujarat High Court when it dismissed in limine C. R. P. No. 1353 of
Mr. S. T. Desai, learned counsel for the
petitioners, pointed out by reference to the special leave petition that there
has been no attempt by his clients to mislead this Court and he further urged
that all the facts have been stated correctly. He admitted that it has been
mentioned in the special leave petition that there is a direct conflict between
the Bombay and Gujarat High Courts in the matter of interpretation of Section
12 (3) (a) of the Bombay Rent Act.
This plea, being a legal contention was
available to the petitioners and they were perfectly justified in placing
before this Court the conflict so that it may be resolved one way or the other.
The statement regarding the conflict made in the special leave petition is also
At the outset we may clear the ground by
stating that Mr. S. T. Desai, learned counsel for the petitioners, desired us
to proceed on the basis that there is nothing on record to show that the Full
Bench decision of the Bombay High Court was placed before the Gujarat High
Court when C. R. P. No. 1353 of 1970 was being heard.
We Will now refer to the statements made in
the special leave petition, which are relevant for the purpose of deciding
whether there has been any untrue statement made by the petitioners. In 401
paragraph 2, it is stated that the special leave petition raises important
question of law relating to the scope and applicability of Section 12 (3) (a)
of the Bombay Rent Act, which applies in all material particulars to both the
States of Maharashtra and Gujarat and that there is a direct conflict between
the Full Bench of the Bombay High Court and the, Gujarat High Court. It is
further stated that the Bombay High Court has held that a matter will not fall
in Section 12(3)(a) not only in those cases for which a dispute in respect of
standard rent has been raised within one month of the service of, notice but
also in those cases in which a dispute in respect of standard rent is raised in
written statement filed in reply to the plaint of the landlord.
In paragraph 2 it is further stated
"This important decision given by the Full Bench of the Bombay High Court,
it is respectfully submitted, is in direct conflict with the authorities of the
Gujarat High Court, and the present decision of the Gujarat High Court from
which this special leave is being filed has also proceeded on the basis which
is in direct conflict with the judgment of the Bombay High Court. This is
because the petitioners who are the tenants had in any event and accepting all
findings of fact of the Courts below. raised a dispute regarding standard rent
in the written statement and therefore on the ratio of the Bombay High Court
judgment the petitioners cannot be ordered to be evicted from the premises."
Paragraphs 4 to 13 give the facts and circumstances leading to the filing of
the petition for special leave. In. those paragraphs facts relating to the
tenancy, the notices that passed between the parties, as well as the findings
of the two subordinate courts and the dismissal by the High Court of C. R. P.
No. 1353 of 1970 are stated.
Paragraph 14 enumerates the various grounds
which, according to the petitioners, will enable them to obtain special leave.
Grounds which according to the respondent,
amount to statements of facts and which are not true are Nos. 2, 3 and 16. They
are as follows :
"II. That the High Court ought to have
examined the aspect as to whether in view of the judgment of the Full Bench of
the Bombay High Court in Special Civil Application No.
718 of 1968 decided on 17th August, 1970, a
case is made out as to whether Section 12 (3) (a) of the aforesaid Act applied
when a dispute about standard rent is raised at the time of written statement.
26-.1 S.C. India/71 402 III. That the High Court
ought to 'have considered the reasons on the basis of which the judgment of the
Full Bench of the Bombay High Court was delivered, particularly in view of the
fact that there was a clear conflict between the judgments of the High Court of
Bombay and the High Court of Gujarat on the question of the scope and
applicability of section 12 (3) (a) of the aforesaid Act.
XVI. It is respectfully submitted that the
petition involves substantial questions of law of public importance and the
decision on which would affect a large number of pending cases both in the
Maharashtra and Gujarat Courts which deal with identical section 12 (3) (a) of
the aforesaid Act. In view of the direct conflict between the Bombay and
Gujarat High Courts it is respectfully submitted that it is a fit case for this
Hon'ble Court or other- wise the same section would be interpreted by both the
courts in contradictory manner. In fact if the petitioners had been in
Maharashtra then he would have succeeded in view of the Full Bench judgment of
the Bombay which squarely applies to the facts of this case, even accepting all
findings of facts against the petitioners. A true copy of the Bombay High Court
Full Bench judgment is annexed hereto as Annexure B and a true copy of the
judgment of the lower appellate court is annexed hereto to as Annexure C."
The true copy of the Full Bench, judgment of the Bombay High Court, referred to
in ground No. XVI is the one in Special Civil Application No. 781 of 1968
decided on August 17, 1970. In the counter-affidavit filed by the respondent in
C. M. P. No. 854 of 1971 in paragraph 5, after referring to the fact that the
Petitioners are making a grievance about the summary dismissal of the C. R. P.
No. 1353 of 1970 by the Gujarat High Court on the ground that the said decision
is in conflict with the Full Bench decision of the Bombay High Court, referred
to above, it is stated :
"The enquiries made by me show that the
Petitioners had not produced before the Gujarat High Court a Certified or even
an Ordinary copy of the said Full Bench Judgment of the Bombay High Court nor
had the petitioners at the admission stage of the Petitioners' Civil Revision
Petition before the Gujarat High Court cited or referred to the said Full Bench
decision. If the information received by me is correct and I believe it to be
correct, it is wholly improper for the Petitioners to approach this 403 Hon'ble
Court and to contend that the Gujarat High Court is in error in not examining
and following the Full Bench decision of the Bombay High Court." In
Paragraphs 8 and 9 it is stated "8. The conduct of the Petitioners would
further appear to be improper because they do not appear to have taken up this
point in their Civil Revision Petition No. 1353 of 1970 filed by them in the
Gujarat High Court.
9. It, therefore, appears that the
Petitioners have completely misled this Hon'ble Court in regard to the true
facts and have thereby obtained from this Hon'ble Court Special Leave to
Appeal, which, in all probability, this Hon'ble Court would not have been
pleased to grant had the Petitioners placed before this Hon'ble Court true
facts of the case." Therefore, it will be seen from the material averments
of the respondent that his bone of contention regarding the statements of fact
by the petitioners is that the statements contained in the relevant paragraphs
of the special leave petition, adverted to earlier, give the impression that
the Full Bench decision of the Bombay High Court was placed before the Single
Judge of the Gujarat High Court when C. R. P. No. 1353 of 1970 was being
disposed of. That the said judgment was not brought to the notice of the High
Court is clear from the fact that no grounds were taken in the Civil Revision
Petition regarding any conflict between the Gujarat and the Bombay High Courts
on identical provisions of the statute.
The petitioners have in their rejoinder
affidavit controverted the allegation that they have in any manner misled the
Court. They have, on the other hand, stated that the conflict between the two
High Courts has been stated in the special leave petition, which is a fact and
it was mainly on that basis that the special leave was asked for and granted by
this Court. They have further stated that there has been no suppression of many
material facts or misstatement of facts which misled the Court in granting the
Mr. I. N. Shroff has referred us to the
decisions of this Court wherein it has been held that when there has been an
untrue statement of a matter of importance or when there has been a misstatement
as to valuation so as to mislead the Count to exercise its discretion in a
party's favour or when a false statement has been made on material facts. this
Court had revoked the special leave already granted.
404 There can be no- controversy that if the
petitioners have made an untrue averment regarding material statements or false
statement of matters of importance or a deliberate untrue statement of material
facts so as to mislead this Court or if there, has been any suppression on any
point of importance the special leave granted by this Court will have to be
revoked. But the question is whether in the circumstances of the case the
petitioners have made any such misstatement or untrue statement of matters of
In S. R. Shetty v. Phirozeshah Nusserwanji
Golabawalla and another (1) special leave was revoked on the ground that the
valuation had been' deliberately inflated by the parties with a view to getting
over the preliminary hurdle regarding valuation. In Hari Narain v. Badri Das
(2), it was observed by this Court :
"It is of utmost importance that in
making material statements and setting forth grounds in applications for
special leave, care must be taken not to make any statements which are
inaccurate, untrue or misleading. In dealing with applications for special
leave, the Court naturally takes statements of fact and grounds of fact
contained in the petitions at their face value and it would be unfair to betray
the confidence of the Court by making statements which are untrue and misleading.
That is why we have come to the conclusion
that in the present case, special leave granted to the appellant ought to be
revoked." In Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody (3)
this Court after referring to the previous decision, cited above, observed as
"Exercise of the jurisdiction of the
Court under Art. 136 of the Constitution is discretionary : it is exercised
sparingly and in exceptional cases, when a substantial question of law falls to
be determined or where it appears to the Court that interference by, this Court
is necessary to remedy serious injustice. A party who approaches this Court
invoking the exercise of this overriding discretion of the Court must come with
clean hands. If there appears on his part any attempt to overreach or mislead
the Court by false or untrue statements or by withholding true information
which would have a bearing on the question of exercise of the discretion, the
Court would be justified in refusing to exercise the discretion or if the discretion
has been exercised in revoking the leave to appeal granted even at the time of
hearing of the appeal." (1) C.A.No. 155 of 1963 decided on 5-4-1963. (2)
 2 S. C. R. 203.
(3)  3 S. C. R. 480.
405 In Sita Bai (dead by her legal
representative and another v. sonu vanji Warti and others (1) this Court
revoked special leave on the ground that on matter of importance the,
appellants therein had made untrue statements' before this Court. Recently in
Shankar Madhoji Nemade v. Chisuji Janaji Bhadke and others (2) this Court
reiterated the principles laid down in the above decisions. But on facts it was
held that there has been no untrue or false averment regarding material facts.
Having due regard to the principles laid down
above and applying them to the case on hand, we are of the, opinion that the
request of the respondent for revoking special leave granted has to be
rejected. We are also satisfied that there has been no false or untrue averment
on material facts made by the petitioners for the purpose of misleading this
Paragraph No. 2 of the special leave petition
refers to the conflict between the Gujarat and- Bombay High Courts with regard
to the scope and applicability of Section 12 (3) (a) of the Bombay Rent Act.
The contrary view taken by the Gujarat High Court is the one reported in
Chunilal Shivlal v. Chimanlal Nagindas (3), which has been followed by the two
subordinate courts. No doubt the High Court has summarily rejected the Civil
Revision Petition. Therefore, what is stated in paragraph No. 2 is a pure
statement of the legal position and factually it is correct. We have also
referred to the grounds Nos. 2, 3 and 16 which are purely legal contentions.
The contention of Mr. Shroff, learned counsel for respondent is that a reading of
these grounds gives the impression that the attention of the Gujarat High Court
was drawn to the Full Bench decision of the Bombay High Court when the Civil
Revision Petition was disposed of.
Assuming it is so, in our opinion, it cannot
be stated that there is any misstatement or untrue averment contained in these
grounds. It must be remembered that they are legal contentions taken in the
grounds attacking the judgment of the Gujarat High Court. We fail. to see in
what other manner a party can draw the attention of this Court to a conflict
between two High Courts with regard to the interpretation of a substantially
similar provision of a statute. It is needless to state that if a party wants
to have a particular legal position settled in a High Court, reconsidered on
the basis of a different decision on identical point by another High Court and
specially with regard to the same statute, he must draw the attention of the
learned Judge to that decision bearing on the point in question. This will be a
very proper thing for a party to do. But that is far from saying (1) C. A. No.
982 of 1965 decided on 25-4-1968.
(2) C. A. No. 85 of 1967 decided on 8-9-1970.
(3) 7 C. L. R. 945.
406 that if he has omitted to place a
particular decision of another High Court on' an identical matter, but
nevertheless when the judgment so given is before a higher Tribunal, he should
not be allowed to challenge the decision on the ground that the other High
Courts have taken a different view. For instance, if a matter is disposed of by
a Division Bench of the same High Court and a similar matter is disposed of by
a Single Judge' on the next day without being made aware of the decision of the
Division Bench in our opinion, it will be perfectly open to the party aggrieved
by the judgment of the Single Judge, when filing.
an appeal against that judgment to urge that
it is contrary to the Division Bench decision of the same court, though that
judgment was not brought to the notice of the Single Judge. The grounds taken
on legal points should not, in our opinion, be confused or mixed up with the
averments regarding material facts or matters of importance.
We are of the opinion that none of the
statements in the special leave petition relied on by Mr. Shroff can be
considered to be untrue or false statements on material facts or matters of
importance. Therefore, the prayer of the respondent for revoking the special
leave granted will have to be rejected. The C. M. Ps. Nos. 2282 of 1971 is
allowed and the prayer in C. M. P. No. 854 of 1961 will stand suitably amended.
Regarding the stay application, it is ordered
that there will be a stay of dispossession of the petitioners from the premises
pending disposal of the appeal by this Court provided, (1) the petitioners
deposit in the trial court within one month from today the entire arrears of
rent; and (2) the petitioners deposit in the trial court rent for every month
on or before the 10th of the succeeding month.
The respondent will be at liberty to withdraw
the rents so deposited unconditionally and without prejudice to his contentions
in the appeal. If the petitioners fail to deposit the arrears or commit two
consecutive defaults in depositing the monthly rent, the stay granted will
stand vacated and the respondent will be entitled to take delivery of the
properties. It is also recorded that Mr. S. T.
Desai, learned counsel for the petitioners,
has undertaken on behalf of the firm and its partners that they will deliver
possession of the premises within three months from the date of judgment in the
appeal, in case the appeal is dismissed. There will be no order as to costs.