Bombay High Court High Court

Smt.Girijabai Bajirao Garje & Ors vs Jitaram Daulaji Kumbhar on 31 March, 2010

Bombay High Court
Smt.Girijabai Bajirao Garje & Ors vs Jitaram Daulaji Kumbhar on 31 March, 2010
Bench: Nishita Mhatre
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    vss
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CIVIL APPELLATE JURISDICTION




                                                                                         
                             SECOND APPEAL NO.475 OF 2003




                                                                 
    Smt.Girijabai Bajirao Garje & Ors.                              ... Appellants

           V/s.




                                                                
    Jitaram Daulaji Kumbhar                                 ... Respondent



    Mr.P.S. Dani for Appellants




                                                     
    Mr.R.M. Pethe for Respondent   
                                                  CORAM: SMT.NISHITA MHATRE, J.

DATED: MARCH 31, 2010

ORAL JUDGMENT:

1. Appeal admitted. By consent heard finally, forthwith.

2. The Second Appeal has been preferred against the judgement and order of

the appellate Court i.e. the additional District Judge, Pune in Civil Appeal No.378 of

1996 by the original plaintiff. The appeal filed by the respondent/defendant was

allowed by the district Court and the suit filed by the appellant/plaintiff was dismissed

with costs.

3. The undisputed facts are as follows:

A shop was let out by the plaintiff to the defendant on a monthly tenancy. It appears

that the defendant fell in arrears of rent from 1.5.1991. The plaintiff, therefore, filed a

suit for eviction of the defendant on various grounds including (i) arrears of rent (ii)

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nuisance and (iii) damage to the property. The suit was filed under the provisions of

the Transfer of Property Act. The defendant resisted the suit by filing his written

statement denying the contents of the plaint. The trial Court decided the suit on

10.1.1996 and decreed the same. The trial Court held that the defendant was in

arrears of rent and that the tenancy had been validly terminated. The trial Court also

held that the provisions of the Bombay Rent Act were not applicable to the suit

premises.

4. Aggrieved by the decision of the trial Court, the defendant preferred an appeal

before the additional District Judge, Pune. While that appeal was pending, a

notification was issued on 11.9.1997 by which the limits of the municipal corporation

were extended to the area in which the suit premises were situated. The appellate

Court, therefore, held that the suit filed by the plaintiff was not tenable as it had not

been filed under the provisions of the Bombay Rents, Hotel and Lodging House

Rates (Control) Act (for short, `Bombay Rent Act;). The appellate Court observed

that in view of a decision of the Supreme Court the appellate Court was bound to

take into account the changes in the law and to extend its benefit to the litigant.

5. The plaintiff has preferred the present appeal, being aggrieved by the decision

of the appellate Court.

6. The substantial questions of law which arise for consideration in the present

appeal are as follows:

(a) Whether the lower appellate Court ought to have held that the

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notification for inclusion of the area, being subsequent to the date of the

decree of the trial court, the suit would continue to be governed by the

provisions of Transfer of Property Act and the learned lower appellate Court

ought to have proceeded to examine the case on merits?

(b) Whether in view of the clear proviso to section 50 of Bombay Rents,

Hotel and Lodging House Rates (Control) Act and the interpretation thereof by

the full bench judgment of this Hon’ble Court as well as by the judgment of the

Hon’ble Supreme Court, the lower Appellate Court was justified in holding that

the suit ought to governed by the provisions of the Bombay Rent Act even if

during the appeal the Act has been made applicable?

7. Before considering the judgments cited at the bar it would be appropriate to

set out the relevant provisions of section 50 of the Bombay Rent Act. Section 50 of

the Bombay Rent Act reads thus:

50. Repeal. – The Bombay Rent Restriction Act, 1939, and the Bombay

Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, are hereby
repealed.

Provided that all suits and proceedings between a landlord and a tenant
relating to the recovery of fixing of rent or possession of any premises to which
the provisions of Part II apply and all suits and proceedings by a manager of a

hotel or an owner of a lodging house against a lodger for the recovery of
charges for, or possession of, the accommodation provided in a hotel or loding
house situated in an area to which Part III applies, which are pending in any
Court, shall be transferred to an continued before the Courts which would
have jurisdiction to try such suits or proceedings under this Act or shall be
continued in such Courts, as the case may be, and all the provisions of this Act
and the rules made thereunder shall apply to all such suits and proceedings.

Nothing in this proviso shall apply to execution proceedings and appeals
arising out of decrees or orders passed before the coming into operation of
this Act and such execution proceedings and appeals shall be decided and

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disposed of as if this Act had not been passed:

……………

          (a)        .............
          (b)        .............




                                                               

Thus, it is clear that the para which is added below the proviso by the amendment

made to the Act by Bombay Act 3 of 1949 specifically provides that the act would not

be applicable to appeals against the decrees which were passed prior to the act

coming into operation for the area within which the suit premises are situated. In my

opinion, the questions raised in the present second appeal are no longer res integra.

8.

In the case of Motiram Ghelabhai (supra), the Supreme Court posed the same

question as the one which arises in the present appeal, namely:

“The short question raised in this appeal is whether a pending appeal would
be governed by the Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947 (for short the Act) upon the Part II of the Act being made applicable
to the area in which the suit premises were situate during its pendency?

The Supreme court considered the legislative amendments and the changes brought

in by the Bombay Act 3 of 1949 which set at rest the conflict which had arisen after

the enactment of the Bombay Rent Act 1947. The Supreme Court then considered

section 50 and the proviso thereto including the new paragraph added after the first

proviso. In para 10 of the judgment, the Supreme court has held as follows:

“10. Having regard to the aforesaid conclusion which we have reached on
the true nature and scope of the proviso to s. 50 of the Act it would be clear
that the present case, in which an appeal (arising out of a decree passed in a
suit filed under the Transfer of Property Act) was pending when Part II of the
Act was made applicable to village Kalwada, would be directly covered by the
proviso read with the separate paragraph added thereto and the appeal was
liable to be decided and disposed of as if the 1947 Act had not been passed,
that is to say, had to be disposed of in accordance with the law that was then
applicable to it In this view of the matter, we are of the opinion that the learned
Assistant Judge as well as the High Court were right In coming to the

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conclusion that the appellant-plaintiff was not entitled to any protection of the
1947 Act as claimed by him.”

9. The learned advocate for the respondent relied on the decision of the apex

Court in the case of Lakshmi Narayan Guin & Ors. v. Niranjan Modak, AIR 1985 SC

111 wherein the Supreme Court considered the provisions of the West Bengal

Premises Tenancy Act. In this judgment the Supreme Court held that the Court must

take into account a change in the law, pending an appeal. The Apex Court further

held that if the applicability of the Act was extended to a particular area after the

passing of a eviction decree but during the pendency of an appeal, the provisions of

the amended Act must be considered by the Court while disposing of the appeal.

The learned advocate for the respondent submits that it is this judgment which has

been rightly followed by the appellate Court. He further submits that although this

judgment in the case of Lakshmi Narayan Guin & Ors. (supra), was delivered earlier

than the decision in Motiram Ghelabhai v. Jagan Nagar (supra), unfortunately that

judgment in Lakshmi Narayan Guin & Ors. (supra) was not pointed out to the Court

while delivering the judgment in Motiram Ghelabhai v. Jagan Nagar (supra).

10. It is true that the judgment in the case of Lakshmi Narayan Guin & Ors.

(supra), has not been referred by the Supreme court in the case of Motiram

Ghelabhai v. Jagan Nagar (supra). However, in my opinion, the decision in the case

of Lakshmi Narayan Guin & Ors. (supra) is not applicable to the present case. This is

because that judgment was with respect to the West Bengal Premises Tenancy Act

and the judgment in the case of Motiram Ghelabhai v. Jagan Nagar (supra), is

directly related to the facts in the present case as it deals with the provisions of the

Bombay Rent Act, 1947, and more particularly section 50 of the Act. Apart from this,

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there is nothing to suggest that the West Bengal Premises Tenancy Act has a

provision which is similar to the para added after the proviso. This para specifically

enjoins that the appeals would be heard in accordance with the earlier law prevalent

under which the suit was decided. Therefore, in my opinion, it is the judgment in

Motiram Ghelabhai v. Jagan Nagar (supra), which must be followed while dealing

with the provisions of the Bombay Rent Act.

11. The appeal is therefore allowed and the decision of the appellate Court is set

aside. As the appellate Court had not decided the appeal on merits, Civil Appeal No.

378 of 1996 is remanded to the Appellate Court for a decision on merits. The appeal

is of the year 1996. Therefore, the appellate Court is directed to dispose of the

appeal within one year from today. Parties to appear before the appellate Court on

3.5.010 for further directions.

12. Second appeal is disposed of accordingly. No costs.

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