Vora Abbasbhai Alimahomed Vs. Haji
Gulamnabi Haji Safibhai [1963] INSC 210 (22 October 1963)
22/10/1963 SHAH, J.C.
SHAH, J.C.
SARKAR, A.K.
DAYAL, RAGHUBAR
CITATION: 1964 AIR 1341 1964 SCR (5) 157
CITATOR INFO :
R 1965 SC 553 (2) R 1965 SC1419 (4) F 1966 SC
153 (12) R 1966 SC 439 (3,4) F 1967 SC1419 (5) RF 1967 SC1853 (5) E 1968 SC1109
(10) E 1968 SC1336 (2) R 1972 SC2379 (9) F 1973 SC1336 (5) RF 1974 SC 818 (15)
D 1976 SC 588 (8) E 1976 SC2005 (20,21,22) RF 1977 SC1707 (9) R 1978 SC 952 (7)
RF 1978 SC1341 (10) RF 1978 SC1518 (9) RF 1979 SC1745 (12) F 1984 SC1744 (23)
ACT:
Bombay Rents, Hotel and Lodging Houses Rates
Control Act, 1947, s. 12--Protection against eviction--Scope of s. 12
(1)--"May" in 12(3) (a) whether mandatory--Protection of 12(3) (h)
when available--S. 12, Explanation, effect or--"Standard
rent"--Meaning of--Revisional Jurisdiction of High Court when
exercisable--Code of Civil Procedure 1908 (Act 5 of 1908), s. 115.
HEADNOTE:
The Appellant was the tenant of the
respondent occupying of the latter premises at a monthly rental of Rs. 70. The
appellant appealed to the Civil Judge for fixing standard rent under s. 11(1)
and for specifying interim rent under s. 11(3) of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 and deposited a certain amount to the
credit of the respondent. Subsequently the respondent filed a suit before the
Civil Judge for evicting the appellant on the ground of non-payment of rent.
The Civil 158 Judge ordered the appellant to deposit the arrears of rent at the
rate of Rs. 51 per month within 15 days. He substantially complied with his
order. The two proceedings were amalgamated. The Civil Judge fixed the standard
rent at the rate of Rs. 50 per month and dismissed the suit for eviction on the
ground that the appellant was willing to pay the standard rent within the
meaning of s. 12 of the Act.
In appeal the District Court fixed the
standard rent Rs. 70 per mensem and found that since the appellant had complied
with the order to deposit arrears and since he was ready and willing and ready
to pay standard rent he confirmed order of the lower court order of dismissing
of the suit.
The respondent took the matter in revision
before the High Court under s. 115 Code of Civil Procedure, 1908. The High Court
reversed the order of the District Court and directed eviction on the grounds
that appellant was not ready and willing to pay the standard rent, that he had
not deposited the standard rent at the rate enhanced by the District Court and
that he had not paid the interim rent at the rate fixed by the trial Court.
Held: (i) Section 12 (1) of the Act applies
to a tenant who continues to remain in occupation even after the determination
of the contractual tenancy. Such a tenant is entitled to claim protection from
eviction against eviction so long as he is willing and ready to pay the
standard rent and permitted increases and observe other conditions under the
Act. This protection is subject to the provisions of s. 13 and to the
limitations contained in s. 12(2) and s. 12(3) (a). The expression
"may" in s. 12(3) (a) has a mandatory content: if the conditions of
this clause are fulfilled the court is bound to pass a decree in ejectment
against the tenant. Bhaiya Punyalal Bhagwandin v. Bhagwat prasad, [1963] 3 S.C.R.
312.
(ii) The power to fix standard rent is
exercisable under s. 11(1) alone. To bring his claim within s. 12(3) (b) the
tenant must pay or tender the standard rent fixed by the court and permitted
increases on or before the first day of hearing or on before such other date
fixed by the court.
The amount of costs has to be paid or
deposited only if the court so directs. If in appeal the standard rent is
enhanced the appeal court may fix a date for payment of the difference and if
the tenant pays the difference on or before the day so fixed he will be
entitled to get the protection of s. 12(3) (h).
(iii) Explanation to s. 12 erects a rule of
evidence.
If the tenant pays or tenders regularly the
interim rent specified by the court till the disposal of the suit the court is
bound to presume that the tenant is at the date of the decree ready and willing
to pay the standard rent and permitted increase. The expression "standard
rent" in s. 12(3) (b) shall not however to be equated with "interim
rent" in s. 11 (3). There is nothing in s. 12 to support the contention
that the dispute concerning standard rent contemplated by cl. (b) of sub-s. (3)
is one which must be raised before service of notice under s. 12(3).
159 (iv) The District Court ought to have before
disposing of the appeal fixed a date for payment of the difference between the
standard rent due and the amount actually deposited in court. The error
committed by the District Court was however only technical.
Held, further the High Court in exercise of
its power under s. 115 Code of Civil Procedure had no authority to set aside
the order of the District Court merely because it was of opinion that the
judgment of the District Court was assailable on the ground of error of fact or
even of law.
The High Court may exercise its power under
that section only if the subordinate court has acted without jurisdiction or
has failed to exercise its jurisdiction or has acted with material illegality
or irregularity.
Balakrishna Udayar v. Vasudeva Aiyar, L.R. 44
I.A.
261, Rajah Amir Hassan Khan v. Sheo Baksh
Singh, L.R. 11 I.A. 237, Joy Chand Lal Babu v. Laksha Chaudhury, L.R. 76 I.A.
131, distinguished.
Manindra Land and Building Corporation v.
Bhutnath Bannerjee, [1964] 3 S.C.R. 495.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 470 of 1963.
Appeal by special leave from the judgment and
decree dated August 14, 1962, of the Gujarat High Court in Revision Application
No. 425 of 1960.
S.T. Desai, B. Parthasarathy, J.B.
Dadachanji, O.C.
Mathur and Ravinder Narain, for the
appellant.
N.C. Chatterjee and M.V. Goswami, for the
respondent.
October 22, 1963. The Judgment of the Court
was delivered by SHAH J.--Haji Gulamnabi Haji Safibhai--hereinafter called 'the
plaintiff'--is the owner of certain premises in the town of Baroda, and Vora
Abbasbhai-hereinafter called 'the defendant'--occupies the premises as
plaintiff's tenant on a monthly rental of Rs. 70. By notice dated December 1,
1956 which was served on December 3, 1956, the plaintiff called upon the defendant
to deliver possession of the premises alleging that the latter had failed to
pay rent since October 1, 1955. The defendant by his letter dated December 7,
1956 contended that he had paid rent at the agreed rate till April 1, 1956, and
that he was entitled to get credit for Rs. 200 being the 160 costs incurred by
him for "electric-installation" in the premises made with the plain.
tiff's consent, and that the rent stipulated was excessive.
On January 5, 1957 the defendant moved the
Civil Judge, Junior Division, Baroda under s. 11(1) of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947, called for the sake of brevity 'the
Act', for an order fixing the standard rent of the premises occupied by him and
also for an order under s. 11 (3) specifying interim rent. By letter dated
January 7, 1957 the defendant informed the plaintiff about the application
moved by him and requested the plaintiff to appear in the proceeding, and
expressed his willingness to pay such amount as the Court ordered him to pay.
On January 8, 1956 the defendant deposited in Court Rs. 500 to the credit of
the plaintiff. On January 27, 1957 the plaintiff instituted a suit in the Court
of the Civil Judge, Junior Division, Baroda, for a decree in ejectment on the
ground of non-payment of rent. On February 14, 1957 the defendant applied to
the Court for an order specifying the rate at which interim rent may be
deposited in Court so long as the standard rent of the suit property was not
fixed, and submitted that the dispute between the parties related to fixation
and payment of standard rent, and that without prejudice to his contentions he
was ready to deposit the amount ordered by the Court. The Civil Judge on the
same day ordered: "The defendant to deposit the arrears at the rate of Rs.
51 per month within 15 days from today." Pursuant to this order the
defendant deposited Rs. 200 on March 2, 1956 to the credit of the plaintiff and
deposited diverse other sums from time to time which by February 11, 1958,
aggregated--taking into account the amount of Rs. 500 deposited on January 8,
1956 to Rs. 1,479. No further steps it appears were taken in the application
moved by the defendant under s. 11 for fixation of standard rent but proceeding
was amalgamated with the suit as the enquiry about the appropriate standard
rent had also to be made in the suit.
161 On March 28, 1958, the Civil Judge,
dismissed the plaintiff's claim for a decree in ejectment. In the view of the
Court the standard rent of the premises was Rs. 50 per month, that the
defendant had paid the stipulated rent upto April 1, 1956 and that he was
entitled to credit for Rs. 150 expended by him3 with the consent of the
plaintiff for "electric-installation" in the premises occupied by
him.
Taking into account the aggregate amount
deposited, the Court held that the defendant was not liable to be evicted for
non-payment of standard rent and that in any event it was established that the
defendant was ready and willing to pay the amount of standard rent and
permitted increases within the meaning of s. 12(1) of the Act.
In appeal the District Court held that the
"proper standard rent" of the premises was Rs. 70 per month, that
rent had not been paid by the defendant since October 1, 1955 and that the
defendant was not entitled to get credit for' Rs. 150 spent by him for'
'electric installation"- But the learned Judge held that by depositing,
pursuant to the order of the Court of First Instance, interim rent as ordered,
the defendant had complied with the requirements of s. 12(3) (b), and that he
had otherwise proved his readiness and willingness to pay the amount of
standard rent and permitted increases. The District Court accordingly confirmed
the decree of the Trial Court, insofar as it related to the claim for
possession and modified it in respect of the quantum of standard rent, and the
consequential adjustment of the amounts deposited in Court.
The High Court of Gujarat in exercise of its
jurisdiction under s. 115, Code of Civil Procedure reversed the decree of the
District Court, and ordered the defendant "to hand over vacant and
peaceful possession of the premises to the plaintiff within four months from
the date of the order".
In the View of the High Court the defendant
was not ready and willing to pay the standard rent and permitted increases at
the date of the suit and that he did not comply 1 SCI/64--11 162 with the
requirements of s. 12(3) (b) of the Act, because he had not deposited in Court
the amount of standard rent at the rate determined by the order of the District
Court and had not paid even the interim rent at the rate fixed by the Court of
First Instance and that he had not paid costs of the suit which he was bound
under s. 12(3) (b) to pay.
Section 12(1) of the Act confers, subject to
certain provisions contained in s. 13, protection upon tenants. It provides:
"A landlord shall not be entitled to the
recovery of possession of any premises so long as the tenant pays, or is ready
and willing to pay, the amount of the standard rent and permitted increases, if
any, and observes and performs the other conditions of the tenancy, in so far
as they are consistent with the provisions of this Act." The clause
applies to a tenant who continues to remain in occupation after the contractual
tenancy is determined it does not grant a right to evict a contractual tenant
without determination of the contractual tenancy. Protection from eviction is
claimable by the tenant even after determination of the contractual tenancy so
long as he pays or is ready and willing to pay the amount of the standard rent
and permitted increases and observes and performs the other conditions of the
tenancy consistent with the provisions of the Act.
The premises in question are situated within
the territory of the former State of Baroda and by virtue of s. 3 of the Bombay
Merged States (Laws) Ordinance VI of 1949 and the Bombay Act IV of 1950 called
the Bombay Merged States (Laws) Act, 1950 which extended the Bombay Rents,
Hotel and Lodging House Rates (Control) Act, LVII of 1947, to the territory of
Baroda, the definition of 'standard rent' in relation to any premises for
purposes residential or nonresidential was enacted by s. 5 c1. (10A). The
clause provides:
163 "'Standard rent' in relation to any
premises let for the purpose of residence or for non-residential purpose means:
(a) where the standard rent is fixed by the
Controller under the House Rent Control Order, 1947, made by the Baroda
Government, such standard rent, or (b) where the standard rent is not so fixed,
subject to the provisions of section 11- (i) the rent at which the premises
were let on the specified date, or (ii) where they were not let on the
specified date, the rent at which they were last let before that date, or (iii)
where they were first let after the specified date, the rent at which they were
first let, or (iv) in any of these cases specified in section 11, the rent
fixed by the Court:
Provided that an increase in rent made in
operation immediately before the 30th day of July 1949, in accordance with the
provisions of the said House Rent Control Order, 1947, shall be deemed to be
included in the standard rent." The expression 'specified date' was
defined in cl. (10) as meaning the first day of January, 1943, in the case of
premises let for the purpose of residence and the first day of January 1944 in
the case of premises let for non- residential purpose.
Where standard rent is not fixed under el.
(a) in sub-s. (10A) of s. 5 recourse must ordinarily be had to the Court for
fixation of standard rent, under s. 11 of the Act.
Section 11 provides:
"(1) In any of the following cases the
Court may, upon an application made to it for that purpose, or in any suit or
proceeding, fix the standard rent at such amount as, having regard, to the
provisions of this Act and the circumstances of the case, the Court deems
just-- 164 (a) where any premises are first let after the first day of
September 1940, and the rent at which they are so let is in the opinion of the
Court excessive; or (b) where the Court is satisfied that there is no sufficient
evidence to ascertain the rent at which the premises were let in any one of the
cases mentioned in sub-clauses (i) to (iii) of clause (b) of sub-section (10)
of section 5; or (c) where by reason of the premises having been let at one
time as a whole or in parts and at another time in parts or as a whole, or for
any other reasons, any difficulty arises in giving effect to this Part; or
(d)where any premises have been or at let rent free or at a nominal rent or for
some consideration in addition to rent; or (e) where there is any dispute
between the landlord and the tenant regarding the amount of standard rent.
"(2) If there is any dispute between the
landlord and the tenant regarding the amount of permitted increases the Court
may determine such amount.
(3) If an application for fixing the standard
rent or for determining the permitted increases is made by a tenant who has
received a notice from his landlord under sub-section (2) of section 12, the
Court shall forthwith make an order specifying the amount of rent or permitted
increases to be paid by the tenant pending the final decision of =the
application, and a copy of such order shall be served upon the landlord."
(On account of some oversight the section has not been amended in its application
to the merged territory of Baroda to make it consistent with the provisions of
the Bombay Act IV of 1950. In cl. (b) reference should have been made to sub-s.
(10A) and not sub-s. (10). But that is a mere drafting error.) Section 11
authorises the Court to fix standard rent on an 165 application made for that
purpose, or in any suit or proceeding when for deciding it is necessary to do
so.
Standard rent is fixed by the Court at such
amount as having regard to the provisions of the Act and the circumstances of
the case, the Court deems just. Clause (2) authorises the Court to fix the
amount of permitted increases. By el. (3) the Court is required in an
application moved by the tenant for fixing the standard rent and permitted
increases, after he has received a notice under s. 12(2), forthwith to make an
order specifying the amount of rent which may appropriately be called interim
rent, pending the final determination of standard rent. The reason of the rule
contained in this clause is obvious: it is to prevent a tenant from making an
application for fixation of standard rent a pretext for refusing to pay rent to
the landlord.
But by an order made under sub-s. (3) the
Court merely specifies the amount of rent payable pending the determination of
standard rent: the Court thereby does not fix standard rent within the meaning
of s. 5(10A) (iv).
The protection given by sub-s. O) of s. 12 is
subject to the provisions of s. 13 and also subject to certain limitations and
restriction procedural as well as substantive contained in s. 12. Sub-section
(2) of s. 12 provides:
"No suit for recovery of possession
shall be instituted by a landlord against a tenant on the ground of non-payment
of the standard rent or permitted increases due, until the expiration of one
month next after notice in writing of the demand of the standard rent or
permitted increases has been served upon the tenant in the manner provided in
section 106 of the Transfer of Property Act, 1882." It enacts a
restriction upon the right of the landlord to sue the tenant in ejectment on
the ground of nonpayment of standard rent or permitted increases, by requiring
him to give one more opportunity to the tenant to pay rent due by him. Clause
(3) (a) of s. 12 166 specifies the circumstances in which the tenant is deemed
to forfeit the protection. It provides:
"Where the rent is payable by the month
and there is n.o dispute regarding the amount of standard rent or permitted
increases, if such rent or increases are in arrears for a period of six months
or more and the tenant neglects to make payment thereof until the expiration of
the period of one month after notice referred to in sub-section (2), the Court
may pass a decree for eviction in any such suit for recovery of
possession." In the context the expression "may" has a mandatory
content:
if the conditions of the clause are fulfilled
the Court is bound to pass a decree in ejectment against tenant: Bhaiya
Punyalal Bhagwandin v. Bhagwatprasad(1). Clause (3) (b) provides:
"In any other case, no decree for
eviction shall be passed. in any such suit if, on the first day of hearing of
the suit or on or before such other date as the Court may fix, the tenant pays
or tenders in Court the standard rent and permitted increases then due and
thereafter continue to pay or tender in Court regularly such rent and permitted
increases till the suit is finally decided and also pays costs of the suit as
directed by the Court." The clause deals with cases not failing within cl.
(3) (a) i.e. cases (i) in which rent is not payable by the month (ii) in which
there is a dispute regarding the standard rent and permitted increases, (iii)
in which rent is not due for six months or more. In these cases the tenant may
claim protection by paying or tendering in Court on the first day of the
hearing of the suit or such other date as the Court may fix, the standard rent
and permitted increases and continuing to pay or tender in Court regularly such
rent and permitted increases till the suit is finally decided and also by
paying costs of the suit as directed by the Court.
What the tenant has to pay or tender in (1)
[1963] 3 S.C.R. 312 167 Court to comply with the condition of cl. (b) of sub-s.
(3) is standard rent and permitted increases, and the Court has under cl. (b)
of sub-s. (1) merely the power to fix the date of payment or tender, and not
the rate at which the standard rent is to be paid. Power to fix the standard
rent of premises is exercisable under s. 11(1) alone. To bring his claim within
s. 12(3)(b) the tenant must pay or tender the standard rent and permitted
increases on or before the first day of hearing, or on or before such other
date as the Court fixes, and also costs of the suit as may be directed by the
Court. It may be noticed that the statute imposes upon the tenant obligation to
pay or deposit the amount of costs if the Court so directs, and not otherwise.
The observation made by the High Court to the contrary, viz:
"It is, therefore, clear that the tenant
in order to be entitled to claim the protection of s. 12(3)(b) must deposit
costs of the suit along with the arrears of standard rent and permitted
increases .... " is in our judgment erroneous.
But in the practical working of cl. (3) (b)
some difficulty may arise. Where there is no dispute as to the amount of
standard rent or permitted increases, but rent is not payable by the month, or
the rent is not in arrears for six months, by paying or tendering in Court the
standard rent and the permitted increases and continuing to pay it till the
suit is finally decided the protection granted by the clause is made effective.
Where there is a dispute as to the standard rent, the tenant would not be in a
position to pay or tender the standard rent, on the first date of hearing, and
fixing of another date by the Court for payment or tender would be ineffectual,
until the standard rent is fixed. The Court would in such a case on the
application of the tenant, take up the dispute as to standard rent in the first
instance, and having fixed the standard rent, call upon the tenant to pay or
tender such standard rent so fixed, on or before a date fixed. If the tenant
pays the standard rent fixed, on or before the date specified, and continues to
pay or 168 tender it regularly till the suit is finally decided, he qualifies
for the protection of cl. (3) (b). If in an appeal filed against the decree,
the standard rent is enhanced, the appeal Court may fix a date for payment of
the difference, and if on or before that date the difference is paid, the
requirement of s. 12(3)(0) would be complied with:
Clause (4) authorises the Court to pay to the
landlord out of the amount paid or tendered by the tenant, such amount towards
payment of rent or permitted increases due to him as the Court thinks fit. Then
follows an Explanation:
"In any case where there is a dispute as
to the amount of standard rent or permitted increases recoverable under this
Act the tenant shall be deemed to be ready and willing to pay such amount if,
before the expiry of the period of one month after notice referred to in
sub-section (2), he makes an application to the Court under subsection (3) of
section 11 and thereafter pays or tenders the amount of rent or permitted
increases specified in the order made by the Court." The Explanation
enacts a rule of evidence. 1f after service of the notice upon the tenant by
the landlord under sub-s. (2) of s. 12 the tenant makes an application under
sub-s. (3) of s. 11 before the expiry of a month and thereafter pays or tenders
regularly the amount of interim rent specified by the Court till the disposal
of the suit, the Court is bound to presume that the tenant is at the date of
the decree ready and willing to pay the standard rent and permitted increases.
Section 12(3) (b) requires the tenant to pay
the standard rent, and not interim rent, and for the purpose of that clause the
expression "standard rent" may not be equated with "interim
rent" specified under s. 11(3).
Compliance with an order for payment of
interim rent is made by the Explanation to s. 12conclusive evidence of the
readiness and willingness to pay the standard rent, but that by itself is not a
ground for holding that the interim rent which 169 may be specified under
sub-s. (3) of s. 11 is standard rent fixed under sub-s. (1) of s. 11. It is
true that the statute requires the tenant to pay or tender in Court standard
rent at the rate which may still remain to be fixed by order of the Court--such
order itself being liable to be varied or modified by an order of a superior
Court. But that is not a ground for departing from the definition supplied by
the statute. The legislature has prescribed conditions on which the tenant may
qualify for protection of his occupation, and one of the important conditions
is the readiness and willingness to pay the standard rent and permitted
increases, which may be proved by obtaining an order of the Court fixing the
rate of standard rent and complying therewith or by complying with the
Explanation to s. 12 or otherwise.
The claim made by the defendant fell within
the terms of s. 12(3) (b) and not s. 12(3) (a). The defendant had contended by
his reply dated December 7, 1956, to the notice served by the plaintiff, that
the contractual rent was excessive: he had then raised the same contention in
the application filed for fixation of standard rent and in his written
statement filed in the suit. There is nothing in s. 12 to support the
contention raised by Mr. Chatterjee on behalf of the plaintiff that the dispute
concerning standard rent contemplated by el. (b) of sub-s. (3) is one which
must have been raised before service of the notice under s. 12(2). The entire
tenor of the section is against that interpretation.
On the view we have expressed, the District
Court was apparently in error in assuming that by tendering in. Court rent at
the rate specified in the order dated February 14, 1957 the requirement of s.
12(3) (b) regarding payment or tender of standard rent was satisfied. Standard
rent for the purpose of s. 12(3)(b) is such rent as is already determined or
may be finally determined under s. 11(1). But it turned out that the amount
deposited by the defendant pursuant to the order of the Court was not less than
the amount fixed by the Trial Court. It is true that the defendant 170 did not
continue to pay rent regularly till the suit was finally decided, and that
deprived him of the protection under s. 12(3) (b). The District Court enhanced
the standard rent to Rs. 70 and directed adjustment of standard rent against
the amount paid in Court. That Court, it is true, did not also strictly follow
the requirements of law, but the defect was technical. The Court should have
before disposing of the appeal fixed a date for payment of the difference
between the Standard rent due and the amount actually deposited in Court. Tile
District Court also held that the defendant had otherwise established his
readiness and willingness to pay the standard rent.
The question which then arises: had the High
Court jurisdiction to set aside the order of the District Court in exercise of
its powers under s. 115 of the Code of Civil Procedure? The District Court on
an erroneous view of s. 12(3) (b) held that the requirements of that provision
were complied with by the defendant, but it also held that having regard to the
circumstances, the readiness and willingness contemplated by sub-s. (t) was
otherwise established. The High Court had, in exercise of its powers under s.
115 Code of Civil Procedure, no authority to set aside the order merely because
it was of the opinion that the judgment of the District Court was assailable on
the ground of error of fact or even of law. Jurisdiction to try the suit was
conferred upon the Subordinate Judge by s. 28(1) (b) of the Act, and the decree
or order passed by the Subordinate Judge was by s. 29(1) (b) subject to appeal
to the District Court Of the District in which he functioned, but all further
appeals were by sub-s. (2) of s. 29 prohibited. The power of the High Court
under s. 115 Code of Civil Procedure was not thereby excluded, but the exercise
of that power is by the terms of the statute investing it severely restricted.
The High Court may exercise its powers in
revision only if it appears that in a case decided by a Subordinate Court in
which no appeal lies thereto the Subordinate 171 Court has exercised a
jurisdiction not vested in it by law or has failed to exercise a jurisdiction
so vested or has acted in the exercise of its jurisdiction illegally or with
material irregularity. As observed by the Privy Council in Balakrishna Udayar
v. Vasudeva Aiyar(1):
" ........... section (s. 115 of the
Code of Civil Procedure) applies to jurisdiction alone, the irregular exercise
or non- exercise of it, or illegal assumption of it. The section is not
directed against conclusions of law or fact in which the question of
jurisdiction is not involved ." Therefore if the Trial Court had
jurisdiction to decide a question before it and did decide it, whether it
decided it rightly or wrongly, the Court had jurisdiction to decide the case,
and even if it decided the question wrongly, it did not exercise its
jurisdiction illegally or with material irregularity: Rajah Amir Hassan Khan v.
Sheo Baksh Singh(2).
Mr. Chatterjee for the plaintiff contended
that the District Court in declining to pass a decree in ejectment refused to
exercise a jurisdiction vested in it by law, and therefore the case fell within
the terms of cl. (b) of s. 115. Counsel relied in support of his plea upon Joy
Chand Lal Babu v. Laksha Chaudhury and others(3). In Joy Chand Lal's case(a),
an application for relief under ss. 30 and 36 of the Bengal MoneyLenders Act
was dismissed by the Subordinate Judge on the view that the loan in question was
a commercial loan which did not fall within the terms of the Act. The Judge
however proceeded to consider whether the suit in which the application was
made was a suit to which the Act applied, and held that it was such a suit. The
High Court of Calcutta set aside the order. In appeal the Privy Council agreed
with the High Court that the Subordinate Judge was bound, upon his finding that
the loan was a commercial loan, to dismiss the application without determining
whether the suit was one to which the Act applied.
(1) L.R. 44 I.A. 261 (2) L.R. 11 I.A. 237 (3)
L.R. 76 I.A. 131 172 Sir John Beaumont in dealing with the power of the High
Court observed:
"There have been a very large number of
decisions of Indian High Courts on s. 115, to many of which their Lordships
have referred.
Some of such decisions prompt the observation
that High Courts have not always appreciated that although error in a decision
of a Subordinate Court does not by itself involve that the Subordinate Court
has acted illegally or with material irregularity so as to justify interference
in revision under sub-s. (c), nevertheless, if the erroneous decision results
in the Subordinate Court exercising a jurisdiction not vested in it by law, or
failing to exercise a jurisdiction so vested, a case for revision arises under
sub-s. (a) or sub-s. (b), and subs. (c) can be ignored." The Privy Council
distinguished between cases in which on a wrong decision the Court either
assumes jurisdiction which is not vested in it or refuses to exercise jurisdiction
which is vested in it by law, and those in which in exercise of its
jurisdiction the Court arrives at a conclusion erroneous in law or in fact. In
the former class of cases exercise of revisional jurisdiction by the High Court
is permissible but not in the latter. This was pointed out by this Court in
Manindra Land and Building Corporation v. Bhutnath Bannerjee and others(1)
wherein after referring to the passage already quoted and another passage from
the judgment in Joy Chand Lal's case(2), the Court observed:
"These remarks are not applicable to the
facts of the present case. They apply to cases in which the law definitely
ousts the jurisdiction of the Court to try a certain dispute between the
parties and not to cases in which there is no such ouster of jurisdiction under
the provisions of any law, but where it is left to the Court itself to
determine certain matters as a result (1) [1964] 3 S.C.R. 495. (2) L.H. 76 I.A.
131 173 of which determination the Court has to pass a certain order and may,
if necessary, proceed to decide the dispute between the parties. The
distinction between the two classes of cases is this. In one, the Court decides
a question of law pertaining to jurisdiction. By a wrong decision it clutches
at jurisdiction or refuses to exercise jurisdiction. In the other, it decides
question within its jurisdiction. In the present case, the question whether
there was a sufficient cause was exclusively within the jurisdiction of the
Court and the Court could decide it rightly or wrongly." Section 12(1)
does not affect the jurisdiction of the Court to entertain and decide a suit in
ejectment against a tenant. It merely confers a protection upon a tenant if
certain conditions are fulfilled, and cls. (2) (3) (a), (3) (b) and the Explanation
deal with certain specific cases in which readiness and willingness pay
standard rent, may either be presumed or regarded as proved. The decision of
the District Court that the tenant established or failed to establish his
readiness and willingness to pay the standard rent does not affect the
jurisdiction of the Court conferred by law upon it, and by wrongly deciding
that a tenant is or is not entitled to protection, the Court does not assume to
itself jurisdiction which is not vested in it by law or refuse to exercise a
jurisdiction which is vested in it by law. Nor does the Court by arriving at an
erroneous conclusion on the plea of the tenant as to his readiness and
willingness act illegally or with material irregularity in the exercise of its
jurisdiction.
The High Court was in error in setting aside
the decree of the District Court in exercise of the powers in revision under s.
115 Code of Civil Procedure. The appeal must therefore be allowed and the order
passed by the District Court restored. If any amount has been deposited as
standard rent since the order passed by the District Court, the same should be
paid over to the plaintiff at the rate of 174 Rs. 70 per month. We direct,
having regard to the circumstances, that there shall be no order as to costs in
this appeal.
Appeal allowed.
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