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N.J. Gor Vs. M.G. Raval - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 311 of 1950
Judge
Reported inAIR1951Bom336; (1951)53BOMLR174; ILR1951Bom310
ActsBombay Rents, Hotel & Lodging House Rates (Control) Act, 1947 - Sections 13; General Clauses Act, 1897 - Sections 7; Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantN.J. Gor
RespondentM.G. Raval
Appellant AdvocateS.G. Patwardhan, Adv.
Respondent AdvocateV.H. Kamat and ;M.V. Parikh, Advs.
DispositionRevision allowed
Excerpt:
.....by landlord for certificate under act of 1944 for possession of premises for his reasonable and bona fide use--application refused by rent controller and collector--suit by landlord under act of 1947 to recover possession on same ground--whether court has jurisdiction to entertain suit.;the plaintiff-landlord applied for a certificate from the rent controller under the bombay rents, hotel rates and lodging house rates (control) act, 1944, on the ground that he required certain premises from his tenant for his reasonable and bona fide use. this was refused by the rent controller and also by the collector on appeal. the question was then concluded between the parties as under section 14(3) of the act the decision of the collector became final. after the passing of the bombay rents,..........act a landlord could eject his tenant on the ground that he required the premises reasonably & bona fide only if he obtained a certificate from the controller to that effect, & the landlord had the right if the controller held against him to appeal to the collector under section 14. but section 14 (3) provided that the decision of the collector, & subject only to such decision, the order of the controller shall for the purposes of that part be final & no civil ct. shall have jurisdiction to settle, decide or deal with any question which was by or under that part settled, decided or dealt with by the controller & collector. therefore it is clear that under act vii [7] of 1944 the decision of the collector that the premises were not required by the landlord reasonably & bona fide.....
Judgment:
ORDER

Chagla, C.J.

1. This is an appln. in revn. against an order passed by the Pull Court of the Small Causes Ct. Bombay, setting aside the decree of the trial Ct. which dismissed the pltf.'s suit for ejectment. The Full Ct. passed the decree for ejectment in favour of the pltf.

2. The contention of Mr. Patwardhan is that in view of certain events that have happened prior to the filing of this suit in the Small Causes Ct. the Small Causes Ct. had no jurisdiction to pass the decree. It would appear that the pltf. applied for a certificate from the Controller under Act VII [7] of 1944 to the effect that he required the premises reasonably & bona fide. The Controller held against him. He went in appeal to the Collector & the Collector confirmed the decision of the Controller.

3. Under that Act a landlord could eject his tenant on the ground that he required the premises reasonably & bona fide only if he obtained a certificate from the Controller to that effect, & the landlord had the right if the Controller held against him to appeal to the Collector under Section 14. But Section 14 (3) provided that the decision of the Collector, & subject only to such decision, the order of the Controller shall for the purposes of that part be final & no civil Ct. shall have jurisdiction to settle, decide or deal with any question which was by or under that part settled, decided or dealt with by the Controller & Collector. Therefore it is clear that under Act VII [7] of 1944 the decision of the Collector that the premises were not required by the landlord reasonably & bona fide became final & no civil Ct. had jurisdiction to deal with that question. The new Rent Act No. LVII [57] of 1947 came into force on 13-2-1948, & the pltf. filed a suit in the Small Causes Ct. on the same ground, viz. that he required the premises reasonably & bona fide, on 1-4-1948. The question that I have to consider is as to whether the repeal of Act VII [7] of 1944 had the effect of altering the provisions of Section 14 of that Act in the sense that although that law made the decision of the Collector final & ousted the jurisdiction of the civil Ct. whether the repeal of that Act & the passing of the new Act gave jurisdiction to the Small Causes Ct., to go behind the decision of the Collector & to go into the question as to whether the landlord reasonably & bona fide required the premises. The effect of the repeal of an Act is provided by Section 7, Bombay General Clauses Act, & that section provides that unless a different intention appears the repeal of an Act shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so made. Therefore, if the deft, had acquired any right under the repealed Act, that right could not be affected unless a different intention appeared in the Act repealing the earlier Act. Clearly, the deft, did acquire a right under the repealed Act & that right was that the decision of the Collector in his favour had become final & the jurisdiction of the civil Ct. to go into that question had been ousted. Therefore, the question that I have to consider is whether under the new Act there is an intention which goes to show that this right of the deft. has been taken away. It is important to note that the ground put forward by the pltf. before the Controller & the Collector was that two of his sons had got married early in 1946 & he required the premises because of that marriage & according to him that requirement was reasonable & bona fide. The requirement put forward by him in the suit before the Small Causes Ct. is identical. It is on the same ground that he says he requires the premises. The trial Ct. held that his requirement was not reasonable & bona fide; the Pull Court has taken the contrary view. I may point out that the Pull Court has also considered the balance of convenience & according to the Pull Court the balance of convenience is in favour of the landlord & not in favour of the tenant.

4. Mr. Kamat's contention is that it is clear from the provisions of Section 13 of the new Act that the Legislature intended that the landlord should have a right to file the suit on the ground that he required the premises reasonably & bona fide notwithstanding the fact that the Collector had decided against the landlord under the old Act, & Mr. Kamat says that Section 13 introduces a new principle which was not to be found under the old Act, & the new principle is that the Court has to consider not merely the reasonable & bona fide requirement of the landlord but also the balance of convenience under Section 13 (2). This is clearly an erroneous submission because even under the new Act the question of balance of convenience only arises provided the landlord has satisfied the Ct. that he reasonably & bona fide required the premises. The new Act gives a further protection to the tenant & that protection is that notwithstanding the landlord's requirement if the Ct. comes to the conclusion that the balance of convenience is in favour of the tenant, a decree would not be passed in favour of the landlord. Therefore, before we come to the stage of balance of convenience, the landlord has to establish his reasonable & bona fide requirement. But if the question of landlord's reasonable & bona fide requirement has already been decided by the Collector under the old Act & under the old Act that decision has become final & a valuable right has accrued to the tenant, there is nothing in Section 13 which suggests that that valuable right should be affected by the landlord being given a right to re agitate the question of his reasonable & bona fide requirement. In my opinion, the Small Causes Ct. had no jurisdiction to go into the question of the landlord's reasonable & bona Sde requirement inasmuch as that question had been finally concluded by the decision of the Collector & no new circumstances were put forward by the landlord in the suit filed by him in the Small Causes Ct.

5. The result is that the appln. must succeed. The decree of the Small Causes Ct. must be set aside & the rule made absolute with costs. Pltf.'s suit dismissed with costs throughout.


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