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SCA/24306/2005 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 24306 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
DINESHBHAI
DAHYABHAI PATEL & 1 - Petitioner(s)
Versus
DANDY
VALVE MANUFACTURING CO. & 2 - Respondent(s)
=========================================================
Appearance
:
MR
RN SHAH for
Petitioner(s) : 1 - 2.
MR PREMAL R JOSHI for Respondent(s) : 1 -
3.
MR DEVAN M DESAI for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 07/05/2007
ORAL
JUDGMENT
The
Petitioners / original defendants have filed this Petition under
Article 227 of the Constitution of India, praying for quashing and
setting aside the orders passed by the Court below, under Section
11(4) of the Bombay Rent Act (for short ?Sthe Rent Act??) and also
praying for the stay, during the pendency of this Petition, not to
proceed further with the HRP Suit No. 213 of 1997 pending in the
Court of Small Causes Court, at Ahmedabad.
Initially
the Petitioners have filed Civil Revision Application No. 1332 of
2001. By virtue of a preliminary objection raised by the respondents
to the maintainability of the Civil Revision Application, either
under Section 29(2) of the Rent Act or under Section 115 of the
Civil Procedure Code (for short ?Sthe Code??), the said Civil
Revision Application was ordered to be converted into Special Civil
Application, upon a request made on behalf of the Petitioners.
It
is the case of the Petitioners that the Respondents / original
plaintiffs filed HRP Suit No. 213 of 1997 (for short ?Sthe Suit??)
against the present Petitioners / original Defendants for recovery
of possession of the suit premises and for recovery of arrears of
rent and also for permanent injunction against the transfer,
subletting or assigning the premises to any third party. The
present petitioners have resisted the said Suit by filing written
statement as exh.20, by contending, inter alia, that the respondents
/ plaintiffs are not entitled to file the said Suit to recover
possession and arrears of rent as there is no relationship of
land-lord and tenants as alleged nor rent claims of standard rent,
and the petitioner no.2 being Private Limited Company, petitioner
no.1 is not liable to pay the alleged rent of the suit premises. It
was also resisted on the ground that the Rent Court has no
jurisdiction in view of the provision of Section 11(4) of the Rent
Act.
During
the pendency of the said Suit, the respondents / plaintiffs filed an
application under Section 11(4) of the Rent Act and further filed an
application exh.42 seeking direction from the trial Court against
the petitioners / defendants to deposit due amount of arrears of
rent. It was contended by the petitioners / defendants that such an
application under Section 11(4) of the Rent Act is not maintainable,
and in support of this case, the petitioners / defendants have filed
an application exh. 49 seeking direction to produce documents so as
to establish that there is no relationship of land-lord and tenant
and Rent Court has no jurisdiction to entertain such Suit. The
learned Small Causes Court Judge, Ahmedabad has passed an order
below application exh.42 on 28.2.2001 whereby the application exh.
42 was allowed and the petitioners / defendants were directed to
deposit a sum of Rs.6,80,000/- in the Court on or before 1.5.2001,
failing which, other orders would be envisaged. The petitioners /
defendants were also directed to deposit Rs.8000/- per month
regularly into Court, from 1.3.2001 onwards.
Being
aggrieved by the said order, the petitioners / Defendants filed
Civil Revision Application before the Appellate Bench of the Small
Causes Court, Ahmedabad and the said Civil Revision Application was
rejected by the Appellate Bench of the Small Causes Court, Ahmedabad
vide its order dated 6.8.2001. It is this order which is challenged
in the present Special Civil Application before this Court.
Mr.
R.N.Shah, the learned advocate appearing for the petitioners has
submitted that the judgment and orders of both the Courts below are
contrary to law, against the provision of statutes and the evidence
on record. He has further submitted that application exh.42 filed
by the respondents / plaintiffs invoking the provision of Section
11(4) of the Rent Act is not maintainable. He has further submitted
that both the Courts below should have rejected the application
exh.42 by holding that the ingredients required for invoking the
provision of Section 11(4) of the Rent Act are not satisfied in the
present case and when the Suit itself is not maintainable, the
question of invoking Section 11(4) of the Rent Act does not arise.
He has further submitted that before deciding the application
exh.42, both the Courts should have allowed the application exh.49
preferred by the petitioners / defendants which is very much
necessary for deciding the Suit as well as application exh.42, as in
absence of documents mentioned in the application exh.49, the Court
cannot proceed further either with the Suit or under Section 11(4)
of the Rent Act. He has further submitted that the Suit filed
against the petitioner no.2 Company which is not in existence since
12.9.1996, cannot be proceeded further and no order can be passed
against the dead entity. He has further submitted that the Suit
filed by the respondents / plaintiffs is not maintainable on the
ground that the partnership is not in existence and all the partners
have not been impleaded as parties – plaintiffs in the Suit. He
has further submitted that the petitioner no.1 is the partner in the
respondent no.1 ? partnership firm. He is impleaded as a party
only because he is Director of the petitioner no.2 ? Company. No
liability can be fastened on the Director of the Company. He has
further submitted that the respondent / plaintiff is a partnership
firm and a Suit for dissolution is filed prior in point of time and
unless and until the disputes between the said partnership firm are
decided the present Suit filed by the respondents / plaintiffs in
the name of the partnership firm cannot be proceeded further. He
has further submitted that in absence of partner, namely, Gitaben
Sanabhai, the Suit filed is not maintainable. He has further
submitted that the alleged demand of rent is not actually the rent
within the meaning of the Rent Act. When the amount is to be
recovered for the purpose of use of the premises as well as
machinery etc and in absence of any decision on the said dispute, no
order can be passed invoking the provision of Section 11(4) of the
Rent Act. He has further submitted that the petitioners /
defendants have not paid any rent nor it was demanded from them
despite the fact that the rent note was allegedly executed in the
year 1984. He has further submitted that the alleged rent note was
not admissible in evidence as it was neither executed on valid stamp
paper nor it was acted upon by the parties at any point of time. He
has further submitted that before invoking the provision of Section
11(4) of the Rent Act for the purpose of recovery of rent, the
standard rent has to be determined first, and the standard rent of
the premises in any case does not exceed Rs.375/- per month. When
the standard rent is not more than Rs.375/- per month, both the
Courts have grievously erred in determining the standard rent at
Rs.8000/- per month. He has further submitted that the claim made
by the respondents / defendants is barred by limitation and hence
the orders passed by the Courts below on an application under
Section 11(4) of the Rent Act are not tenable at law and they
deserve to be quashed and set aside.
In
support of his submission that the Courts below have no jurisdiction
to decide an application under Section 11(4) of the Rent Act, Mr.
Shah has relied on the decision of this Court in the case of
(MESSERS) GANESH CORPORATION V/S GUJARAT VIDYUT BOARD AND OTHERS,
2006(3) G.L.H. 708, wherein
it is held that; when the trial Court had no jurisdiction to
entertain or decide the suit, then, it could not proceed to decide
on the merits of the matter. It was obliged to act in act in
accordance with R-10 of O-VII of the Code and should have asked for
return of the plaint. Mr. Shah has further submitted that
non-deposit of the amount as directed by the Courts below would not
result into striking off the defence automatically. As a matter of
fact no such directions are issued in the impugned order. For this
purpose he relied on the decision of this Court in the case of
LAXMANDAS CHELARAM V/S HEMDAS HAUROMAL,
1984 G.L.H. 462,
wherein it is held that; Every litigant is entitled to a fair
trial and a fair trial envisages an opportunity to make a defence
and the trial of a case on the defence. The stringent
provision in Section 11(4) is intended as a deterrent to a tenant
who fails to deposit what is determined by the Court by way of an
interim measure as ?SStandard rent?? payable by him. Even so, the
Act itself makes a provision by way of safeguard to relieve a
litigant of the disastrous consequences that may befall on him,
perhaps by reason of sheer inability to comply with the order of
deposit. The provision has to be understood and applied in its true
spirit, viewing it as a deterrent provision and, at the same time,
assuring all safeguards envisaged by the Section to the tenant.
These safeguards include a clear notice by the order of the Court
that, if a tenant fails to comply with the order directing to
deposit within the time specified or within such further time as may
be allowed by the Court, the tenant will not be entitled to appear
in or to defend the suit except with the leave of the Court. In
such an event, he knows the consequences of his default. A mere
direction to make a deposit within a particular time does not visit
the consequence of the defence being struck off unless it be that
there is a further direction by the Court that this be done if
compliance is not made within a time to be specified. In that
event, a tenant, unable to comply, has an opportunity to show that
for specified reasons he has not been able to make the deposit and
still he may be relieved of the consequence of the order. Where a
Court does not pass an order that failure to deposit within a
specified time will result in the consequence of the defence being
struck off, there can be no order striking off the defence for
reason of non deposit. That would be to go against the express
language of the statute and to seriously infringe the safeguard
envisaged against the application of the stringent provision in
Section 11(4) of the Act.
Based
on the above observations, Mr. Shah has submitted that in the
present case also the Court has not passed any order to the effect
that failure to deposit the amount as directed by the Court would
result into striking off the defence. He has, therefore, submitted
that no such direction should be issued by this Court in the present
petition.
Based
on the aforesaid submissions, on facts as well as in law, and
relying upon the judgments cited at bar, Mr. Shah has submitted that
the orders passed by the authorities below deserve to be quashed and
set aside and the petition be allowed accordingly.
Mr.
Premal Joshi, the learned advocate appearing for the respondents /
plaintiffs on the other hand has strongly submitted that both the
Courts below have given concurrent findings of fact and such
concurrent findings of fact cannot be disturbed while exercising the
powers under Article 227 of the Constitution of India. For this
purpose he relies on the decision of the Hon’ble Supreme Court in
the case SUGARBAI M. SIDDIQ AND OTHERS V/S RAMESH S. HANKARE
(DEAD) BY LRS., (2001)8 SCC 477, wherein it is held; In an
application under Article 227 of the Constitution, the High Court
has to see whether the lower court / tribunal has jurisdiction to
deal with the matter and if so, whether the impugned order is
vitiated by procedural irregularity; in other words, the Court is
concerned not with the decision but with the decision making
process. On this ground alone the order of the High Court is liable
to be set aside. He further relies on the decision of the
Hon’ble Supreme Court in the case of OUSEPH MATHAI AND OTHERS V/S
M. ABDUL KHADIR, (2002) 1 SCC 319, wherein it is held that;
Article 227 confers a right of superintendence over all courts
and tribunals throughout the territories in relation to which the
High Court exercises the jurisdiction but no corresponding right is
conferred upon a litigant to invoke the jurisdiction under the said
article as a matter of right. In fact power under this article
casts a duty upon the High Court to keep the inferior courts and
tribunals within the limits of their authority and that they do not
cross the limits, ensuring the performance of duties by such courts
and tribunals in accordance with law conferring powers within the
ambit of the enactments creating such courts and tribunals. Only
wrong decisions may not be a ground for the exercise of jurisdiction
under this article unless the wrong is referable to grave
dereliction of duty and flagrant abuse of power by the subordinate
courts and tribunals resulting in grave injustice to any party. No
such position is found in the present case which justifies
exercising powers under Article 227 of the Constitution. He further
relies on the decision of the Hon’ble Supreme Court in the case of
ESSEN DEINKI V/S RAJIV KUMAR, (2002) 8 SCC 400, wherein it is
held that; Exercise of jurisdiction under Article 227 of the
Constitution is limited and restrictive in nature. It is so
exercised in normal circumstances for want of jurisdiction, errors
of law, perverse findings and gross violation of natural justice, to
name a few. It is merely a revisional jurisdiction and does not
confer an unlimited authority or prerogative to correct all orders
or even wrong decisions made within the limits of the jurisdiction
of the courts below. The finding of fact being within the domain of
the inferior tribunal, except where it is a perverse recording
thereof or not based on any material whatsoever resulting in
manifest injustice, interference under the article is not called
for.
Based
on the aforesaid decisions, Mr. Premal Joshi has strongly urged that
there is no lack of jurisdiction nor any violation of principles of
natural justice. The findings recorded by the Courts below cannot
be said to be perverse and hence, this Court should not exercise its
supervisory power under Article 227 of the Constitution of India and
therefore, petition deserves to be dismissed.
Apart
from the maintainability of the petition, Mr. Joshi has addressed
the Court even on merits and submitted that there is no infirmity or
illegality in the orders passed by both the Courts below. He has
submitted that the learned Small Causes Court Judge has rightly
allowed the application preferred by the respondents plaintiffs
under Section 11(4) of the Rent Act and the revision application
filed there against was also rightly rejected by the Appellate
Court. He has submitted that registered notice dated 9.07.1996 was
served on the petitioners as provided under Section 12(2)(a) of the
Rent Act. But the petitioners have not cared even to reply to the
said notice. He has further submitted that rent note dated
17.4.1984 between the petitioners and the respondents is filed in
the trial Court in which the petitioners have signed the said
document and have agreed to abide by the terms and conditions stated
therein. He has further submitted that the respondent no.1 is a
partnership firm and the respondent nos. 2 and 3 are its partners.
The present petitioner no.1 / original defendant is a company
incorporated under the Companies Act, 1956 and the petitioner no.2
is Director of the said Company. The petitioner no.2 is not joined
in his individual capacity. The Suit was not filed by one partner
against the another partner as contended. He has further submitted
that the Appellate Court has rightly held that it has jurisdiction
to decide the subject matter and the bar of Section 6 of the Rent
Act does not come in the way of the respondents / plaintiffs.
However, the question of jurisdiction is still to be decided at the
time of trial of the Suit, and the only question which is required
to be determined for the purpose of deciding the respondents /
plaintiffs application exh. 42 is, whether there exists relationship
of land-lord and the tenant between the parties and the Appellate
Court has rightly relied upon the rent note produced at exh.36/2.
He has further submitted that while rejecting the application exh.49
moved by the petitioners / defendants for production of documents,
the trial Court has rightly come to the conclusion that looking to
the pleadings and the facts of the case, the documents called for by
the respondents / defendants were not relevant for the purpose of
deciding the subject matter or the suit as well as for deciding
application exh.42 given under Section 11(4) of the Rent Act. He
has further submitted that various contentions raised and statements
made in the various grounds of the revision application which was
subsequently converted into Special Civil Application are wrong,
illegal and without any basis. Both the Courts below have
appreciated and considered all the contentions, and therefore, the
present petition should not be entertained by this Court.
After
having heard the learned advocates appearing for the respective
parties and after having gone through the impugned orders passed by
both the Courts below and the submissions made before this Court,
the Court is of the view that since there is concurrent findings of
fact given by the Court below, it is not just and proper for this
Court to interfere in the said order, especially when the Suit is
still pending before the trial Court. The grounds urged and the
contentions raised were also urged before the Courts below and after
proper appreciation of facts and in light of the statutory
provisions and decided case law, both the Courts below have come to
the right conclusion, which cannot be interfered with while
exercising powers under Article 227 of the Constitution of Inida.
The decisions cited before this Court in support of the submissions
of the petitioners are not applicable to the facts of the case. Even
with regard to jurisdiction, the trial Court has not come to the
conclusion that it had no jurisdiction. The issue was kept open and
it is to be decided at the time of final disposal of the Suit.
There is no dispute about the fact that the respondent / plaintiff
is a partnership firm. It is true that the Suit for dissolution of
the partnership firm is pending but Suit for recovery of rent as
well possession of the Suit property is certainly maintainable. The
present petitioner no.1 is impleaded in the Suit in its capacity as
a Director. Even if he is a partner in the partnership firm, it
cannot be said that any recovery is sought to be enforced against
him qua his capacity as partner in the partnership firm. The ground
raised regarding time barred debt is properly considered by the
trial Court and only the admissible debt was taken into
consideration and direction to deposit the amount is also restricted
to that effect. The quantum of standard rent as decided by the
trial Court cannot call for any interference by this Court.
Considering all the contentions raised before this Court, the Court
is of the view that there is no substance or merits in the petition.
It is made clear that the Court has not expressed any opinion on the
ground with regard to jurisdiction, as the Suit is still pending.
The Court, therefore, dismisses this petition only on the ground
that the powers exercisable by this Court under Article 227 of the
Constitution are very restricted and the facts of the present case
do not warrant the Court to exercise such powers. The petition is
therefore dismissed. Rule is discharged without any order as to
costs.
(K.A.Puj,J)
Jayanti*
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