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Gulabchand Ramchand JaIn Vs. Noorbeg Umarbeg Mirza - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 2598 of 1979
Judge
Reported inAIR1980Bom307
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 11(1), 11(3), 12, 12(2), 12(3), 13(1), 13(3A), 17 and 32; Code of Civil Procedure (CPC), 1908 - Sections 148 - Order 41, Rule 22; Constitution of India - Article 227
AppellantGulabchand Ramchand Jain
RespondentNoorbeg Umarbeg Mirza
Appellant AdvocateM.A. Rane, Adv.
Respondent AdvocateP.M. Shah, Adv.
Excerpt:
tenancy - eviction - sections 11 (1), 11 (3), 12, 12 (2), 12 (3), 13 (1), 13 (3a), 17 and 32 of bombay rents, hotel and lodging house rates control act, 1947, section 148 and order 41 rule 22 of code of civil procedure, 1908 and article 227 of constitution of india - petitioner challenged eviction order passed on grounds of default in payment of rent - petitioner has not complied with conditions under section 12 (3) - finding of fact pertaining to bona fide requirement and comparative hardship to landlord not erroneous - order 41 rule 22 are not applicable - impugned order justified. - - 77 of 1971 filed by the respondent in the court of the civil judge, junior division at amalner for possession of the suit premises on the grounds that the petitioner has failed to pay the arrears of.....order1. a two storeyed house in amalner town of jalgaon district is tenanted by the petitioner in this petition and the respondent is the owner of the said house and, therefore, the landlord of the petitioner. the annual rent of the house, which will hereinafter be referred to as 'the suit premises', is rs. 500. that rent was fixed in the year 1957 when the petitioner took the suit premises on lease from the respondent, both for residence and business. it has been found by the two courts below that though the rent is calculated at rs. 500 per annum it is payable by the month at the rate of rs. 41.65. the suit out of which the present proceedings have arisen is regular civil suit no. 77 of 1971 filed by the respondent in the court of the civil judge, junior division at amalner for.....
Judgment:
ORDER

1. A two storeyed house in Amalner Town of Jalgaon District is tenanted by the petitioner in this petition and the respondent is the owner of the said house and, therefore, the landlord of the petitioner. The annual rent of the house, which will hereinafter be referred to as 'the suit premises', is Rs. 500. That rent was fixed in the year 1957 when the petitioner took the suit premises on lease from the respondent, both for residence and business. It has been found by the two Courts below that though the rent is calculated at Rs. 500 per annum it is payable by the month at the rate of Rs. 41.65. The suit out of which the present proceedings have arisen is Regular Civil Suit No. 77 of 1971 filed by the respondent in the Court of the Civil Judge, Junior Division at Amalner for possession of the suit premises on the grounds that the petitioner has failed to pay the arrears of rent, which were for a period of more than six months, within one month after the notice under Section 12(2) of the Bombay Rents Hotel and Lodging House Rates Control Act (hereinafter referred to as 'the Bombay Rent Act') was served upon him, that the petitioner had erected permanent structures on the suit premises without the consent of the respondent in writing, and that the respondent required the suit premises reasonably and bona fide for his own use and occupation. The suit was resisted by the petitioner by denying the permanent character of the structures erected upon the suit premises, by denying that there was any default on his part in the payment of rent, and further by denying the reasonable and bona fide requirement of the respondent. It was also contended on his behalf that if a decree for possession were passed it would cause greater hardship to him than the hardship that would be cause to the respondent if a decree for eviction were refused.

2. The learned trial Judge by his judgment and order dated 27th of Sept. 1976 decreed the suit on two grounds. He held that the petitioner was guilty of default in the payment of the arrears of rent and a decree was warranted under the provisions of Section 12(3)(a) of the Bombay Rent Act. He further held that the petitioner was guilty of erecting permanent structures on the suit premises without the consent of the respondent in writing. On the third ground he held that though the respondent had proved his bona fide and reasonable requirement of the suit premises the petitioner would suffer greater hardship if a decree for possession were passed. In the result he passed the decree as mentioned above only on two grounds.

3. The petitioner preferred an appeal, being Civil Appeal No. 148 of 1976, which was heard and dismissed by the learned Extra Assistant Judge of Dhulia by his judgment and order dated 21st of Sept. 1979. The learned Extra Assistant Judge upheld the finding of the learned trial Judge that the petitioner was guilty of 'default in the payment of rent, thus meriting a decree for eviction under Section 12(3)(a) of the Bombay Rent Act. He, however, reversed the finding of the learned trial Judge relating to the erection of the permanent structures on thesuit premises. On this aspect the learned Assistant Judge took the view that though the structures have been erected by the petitioner without the written consent of the respondent, those structures were by way of repairs and, therefore, did not warrant a decree for possession. On the question of the reasonable and bona fide requirement the learned Assistant Judge concurred with the view of the learned trial Judge but he differed from him on what is for bravity's sake called the comparative hardship--a question arising under Section 13(2) of the Bombay Rent Act. He held that greater hardship will be caused to the respondent if a decree for possession were refused. The net result was the confirmation of the decree passed by the trial Court on the ground that the petitioner was guilty of default in the payment of rent. The finding on the question of erection of permanent structures was reversed in favour of the petitioner while the finding on the question of comparative hardship was reversed in favour of the respondent. It may be stated at this stage that the respondent had not filed any appeal or cross objection relating to the finding on the question of comparative hardship. Neither an appeal nor cross objection lies against a finding, but I am mentioning this because Mr. Rane appearing for the petitioner has advanced an argument on the legality and propriety of the learned Assistant Judge reversing a finding in favour of the appellant without the respondent challenging the finding especially in cases arising under the Bombay Rent Act. The petitioner has now challenged the decree passed by the learned Assistant Judge by this petition under Article 227 of the Constitution.

4. Mr. Rane on behalf of the petitioner has assailed the judgment of the Court below on two grounds. He has in the first place mentioned that it was an error on the part of the Court below 1o hold that the present case was covered by the provisions of Section 12(3)(a) of the Bombay Rent Act. According to him, there was even before the issue of the suit notice a dispute relating to the standard rent of the suit premises and, therefore, the case should have been dealt with as one falling under Section 12(3)(b) of the Act. It may be stated that the learned Extra Assistant Judge has also dealt with this question alternatively on the basis that it fell under Section 12(3)(b) of the Bombay Rent Act. Dealing so thelearned Assistant Judge has held that the petitioner has not complied with the conditions under Section 12(3)(b) of the Bombay Rent Act meriting a protection from the decree of eviction. On this aspect Mr. Rane has relied upon a judgment of myself in Mohanlal v. Khirnraj, 1978 MLJ 611. More about this a little later.

5. Thereafter Mr. Rane has contended that the appeal Court below was incompetent to reverse a finding which was in favour of the appellant before it without the respondent having challenged the correctness of that finding by way of cross-objection or by way of an appeal. According to Mr. Rane, though there is a decree for eviction under the Rent Act, the nature of the decree passed under the different provisions of the Rent Act is different and different consequences flow from the decree depending upon under which provision the decree has been passed.

6. I will now proceed to deal with these contentions of Mr. Rane in that order. The facts show that the petitioner had not paid rent from the month of March 1968. The respondent had, instead of waiting for six months, sent a notice on 1st of May 1968 calling upon the petitioner to pay the rent. To this the petitioner sent a reply dated 24th of May 1968 mentioning clearly therein that the respondent is demanding excessive rent and the agreed rent was not the standard rent. It had also been mentioned in this reply that the permitted increases which the respondent was claiming were not permissible in law. After this notice was received the respondent did not take any step for nearly three years. On 12th March 1971 he issued a notice demanding arrears of rent from March 1968 to 28th February 1971. These arrears admittedly were for a period of more than six months. This was a notice under Section 12(2) of the Bombay Rent Act and admittedly the petitioner did not pay the arrears as demanded in this notice. Nor did he file an application under Section 11(3) of the Bombay Rent Act for fixing the standard rent as mentioned in Explanation I of Section 12 of the Bombay Rent Act. The question which arises is whether such a case falls under Section 12(3)(a) or under Section 12(3)(b) of the Bombay Rent Act. Briefly, if there is a dispute about the standard rent the case must fall under Section 12(3)(b) of the Bombay Rent Act whereas if there is no dispute about the standard rent the case is governed bythe provisions of Section 12(3)(a) of the said Act. This is so in the present case on the footing that the arrears of rent were admittedly for a period of more than six months.

7. Mr. Rane has contended, and in my opinion with full justification, that when the suit notice, namely, the notice dated 12lh of March 1971, was issued by the respondent purportedly under Section 12(2) of the Bombay Rent Act, a dispute about the standard rent of the suit premises already existed because to the earlier notice issued by the respondent on 1st of May 1968 the petitioner had in unmistakable terms replied that the respondent was demanding excessive rent. In the said reply, which is at Exhibit 54/D, it has been specifically asserted by the petitioner that he was not liable to pay the increases in the Municipal Taxes because the said increases have been made on account of constructions made by the respondent and further that the respondent was demanding excessive and unfair rent from the petitioner. The petitioner called upon the respondent to inform him what the rent of the suit premises was in September 1940. The petitioner had further informed the respondent by this letter that he was prepared to pay the standard rent. This shows that the petitioner asked the respondent to furnish him the information relating to what the standard rent of the suit premises was and had contended that the rent demanded by the respondent was unfair and excessive. Surprisingly the respondent did not send any reply to this letter nor did he file a suit for the recovery of the rent demanded in his notice. On the date on which, therefore, the respondent sent the suit notice of 12th March 1971 there was already a dispute relating to the amount of standard rent. A question has arisen as to whether it is necessary that the dispute about the standard rent should be raised after the notice under Section 12(2) of the Bombay Rent Act is issued or whether it is sufficient that such a dispute existed on the date on which the notice is issued or even prior to that.

8. Brief references to some of the decisions are inevitable. In Abbasbhai v. Gulamnabi, : [1964]5SCR157 , the landlord had issued a notice on 1st of December 1956 and the tenant had sent a reply on 7th Dec. 1956 contending that the rent demanded by the landlord was excessive. Within one month after the receipt of the notice the tenant had not made art application for the fixation ofstandard rent under Section 11(3) of the Rent Act but made an application under Section 11(1) on 5th Jan. 1957. The Supreme Court held that because the tenant hadalready raised a dispute about the standard rent by his reply dated 7th Dec. 1956, which was within one month after the issue of the notice under Section 12(2) of the Bombay Rent Act, the case would be governed by the provisions of Section 12(3)(b) of the Rent Act. From this it must be held that in order to establish that there is a dispute about the standard rent, it is not necessary for a tenant to make an application under Section 11(3) read with Explanation I of Section 12 of the Bombay Rent Act within one month after the receipt of the notice under Section 12(2). Such a dispute could be raised in a manner other than by the filing of an application for fixation of standard rent.

9. I may now refer to the recent judgment of the Supreme Court in Harbanslal v. Prabhudas, : [1976]3SCR628 . This decision deals with two cases. It is not necessary to refer in detail to the facts of the two cases dealt with by the Supreme Court. It is sufficient for our purpose to notice the law laid down in the said judgment. Before I do so I must point out that the Supreme Court noticed the proposition of law laid down in Abbasbhai's case : [1964]5SCR157 which I have mentioned above. Indeed, the proposition in Abbasbhai's case that a dispute must be deemed to be existing if a tenant had replied within one month of the receipt of the notice under Section 12(2) of the Rent Act questioning the correctness of the rent demanded by the landlord has been reaffirmed by the Supreme Court in this case. Thereafter the Supreme Court proceeded to consider the judgment of the Gujarat High Court in Ambalal v. Babal-das, : AIR1964Guj9 and approved of the law laid down in that judgment, namely that:

'In order to attract the applicability of Section 12(3)(b) of the Act there must be non-existence of the dispute at the date of the notice and such non-existence must continue right up to the expiration of one month from the date of service of the notice so that if the dispute is raised at any time prior to the expiration of the said period of one month, the operation of Section 12(3)(b) would be excluded.'

10. From what has been extracted from the judgment of the Supreme Courtinterpreting the Gujarat High Court's judgment in Ambalal's case it is clear to me that even if on the date of the notice there is a dispute about the standard rent the case would be one governed under Section 12(3)(b) of the Rent Act and not Section 12(3)(a). Proceeding further, the Supreme Court has observed in Harbanslal's case : [1976]3SCR628 that the dispute must be in existence latest within one month after service of the notice. Thereafter the judgment in Section D. Chhaganlal v. D. V. Shroff, : [1968]3SCR346 has been explained by the Supreme Court. It is not necessary to refer to the same. It is true that in Harbanslal's case the Supreme Court has mentioned that in order to escape from the consequences mentioned in Section 12(3)(a) of the Bombay Rent Act, the tenant should make an application under Section 11(3) of the said Act within one month of the service of the notice under Section 12(2). This of course is one of the ways in which a case is taken out of the clutches of Section 12(3)(a) of the Act. Since it has been in unmistakable terms mentioned by the Supreme Court that a dispute can exist either on the date of the notice or within one month after the notice by an appropriate reply to the notice (without making an application under Section 11(3) of the Bombay Rent Act), it is clear that an application under Section 11(3) read with Explanation I to Section 12 of the Bombay Rent Act is not the only way of showing that there is a dispute about the standard rent. A similar view has been taken by the Full Bench of the Gujarat High Court in Ramniklal v. Mohanlal, : AIR1977Guj15 .

11. Explanation I to Section 12 of the Bombay Rent Act deals with one of the possible situations that arise when there are arrears of rent for a period of more than six months. The tenant is at liberty, after having received a notice under Section 12 (2) of the Bombay Rent Act, to make an application under Section 11(3) and then the presumption arising under Explanation I to Section 12 will necessarily be available to him. This, however, does not mean that when there is evidence to show that a dispute about the standard rent does exist the tenant must necessarily make an application under Section 11(3) of the Act. Even when he does not make such an application his case will be governed by the provisions of Section 12(3)(b) of the Act if the evidence otherwise shows that there was a dispute aboutthe standard rent on the date of the notice or such a dispute is raised in any other way within one month after the receipt of the notice. From what has been mentioned by me above it is clear that in this case there was already a dispute about the standard rent before the respondent issued the notice under Section 12(2) of the Bombay Rent Act on 12th March 1971. The learned trial Judge proceeded on the basis that the case was governed by the provisions of Section 12(3)

(a) of the Bombay Rent Act because the petitioner did not make an application under Section 11(3) of that Act within one month after the receipt of the notice. His view is incorrect. The learned appellate Judge recognised the fact that the petitioner had challenged the correctness of the rent claimed by the respondent but thought that the petitioner had raised such a dispute in an oblique manner. No convincing reason has been given by the learned Assistant Judge for holding that the dispute was raised by the petitioner in an oblique manner. On the other hand, there is a direct challenge by the petitioner to the respondent telling him that the rent demanded by him is excessive and asking him to inform what the rent of the suit premises was in Sept. 1940. In my opinion, there is nothing oblique in the manner in which the petitioner has raised the dispute about standard rent. It must, therefore, be held that there was a dispute about the standard rent at the time when the notice under Section 12(3) of the Bombay Rent Act was issued and the case is governed by the provisions of Section 12(3)

(b) of the Bombay Rent Act.

12. That a dispute about the standard rent might be existing even before the issue of the notice under Section 12(2) of the Bombay Rent Act has been recognised by another judgment of this Court in Limbayya v. Narammabai, (1974) 76 Born LR 344. In that case an application under Section 11(1) of the Bombay Rent Act had been made and during the pendency of that application the landlord had issued a notice under Section 12(2) of the Bombay Rent Act. In fact the proceedings relating to the standard rent were pending in a revisional Court when this notice was issued. Despite this it was held that it was a case governed by the provisions of Section 12(3)(b) of the Bombay Rent Act because a dispute about the standard rent had already been raised by filing an application under Section 11(1) of the Act even before the issue of the notice. It was notnecessary in such a case to file a further application under Section 11(3) read with Explanation I to Section 12 of the Bombay Rent Act in order to attract the provisions of Section 12(3)(b) of the Bombay Rent Act. I respectfully agree with this view and I may further point out that where an application under Section 11(1) of the Bombay Rent Act has already been made it is not necessary for the tenant after receiving notice under Section 12(2) of the Act to make a further application under Section 11(3) (See Karamsey v. Velji, : (1954)56BOMLR619 and Sayed Umar Sayed Ahmed v. Dadamiya, 1977 M LJ 261. It is enough if the requirements mentioned in Section 12(3)(b are otherwise worked out.

13. The learned Assistant Judge considered the case from this angle also, but held that the petitioner has not complied with the conditions under Section 12(3)(b of the Act. While so holding he noticed that the petitioner has not paid rent regularly every month after the issues were settled on 18th of February 1971. There is in this view of the learned Assistant Judge an error which is patent when one considers my judgment in Mohanlal's case. Mr. P. M. Shah appearing for the respondent, however, hastened to mention that my judgment in Mohanlal's case explaining and following Chagla C. J.'s judgment in Kalidas Bhavan v. Bhagwandas : (1958)60BOMLR1359 must be deemed to have been overruled by the recent judgment of the Supreme Court in Ganpat v. Sashikant : [1978]3SCR198 . I have heard Mr. Shah at great length on this question and find myself unable to agree with him that the view expressed by me in Mohanlal's case following Chagla C. J.'s judgment in Kalidas's case is in any way affected by the judgment of the Supreme Court in Ganpat's case. The question which arose in Ganpat's case before the Supreme Court was whether the view of Chagla C. J. in Kalidas's case that despite the non-compliance by the tenant with the conditions mentioned in S- 12 (3) (b) of the Bombay Rent Act the Court had a discretion not to pass a decree was correct. The Supreme Court answered it emphatically in the negative. It was mentioned that if it was found that the tenant has not complied with the conditions mentioned in Section 12(3)(b)BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL ACT, 1947^ of the Bombay Rent Act, the Court has no discretion not to pass a decree for eviction. The emphasis of the judgment of the Supreme Court was that Section 12(3)(b did not createany discretionary jurisdiction in the Court if the conditions mentioned therein are not complied with by the tenant. The other part of Chagla C. J.'s judgment in Kalidas's case laying down that there is compliance with the provisions contained in Section 12(3)(b)BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL ACT, 1947^ even if the tenant has made payments after the dates originally fixed by the Court and if the said payments are condoned and accepted by the Court has not been touched at all by the Supreme Court in Ganpat's case. Indeed that question was not before the Supreme Court at all. In my opinion, Chagla C. J.'s judgment followed by me in Mohanlal's case relating to the question as to whether the tenant has complied with the conditions mentioned in Section 12(3)(b)BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL ACT, 1947^ by making payments which are subsequently accepted by or under the orders of the Court remains totally unimpaired. As I have pointed out in Mohanlal's case, the crux of the ratio in Kalidas's case is this that if the Court allows explicitly or by necessary implication the payment of rent on dates other than the first day of hearing and the tenant makes payments which are treated as payments as per the Court's order it would be compliance with the provisions contained in Section 12(3)(b) of the Act. After all the orders relating to the deposit of rents in the Court are orders of procedural nature and the Court must have power to condone the delay, if any, in the said payments under Section 148 of the Civil P. C. Apart from this, even under the provisions of Section 12(3)(b) of the Bombay Rent Act, there is enough latitude to the Court to re-schedule the dates of payments after they are once fixed. I have discussed this at great length in any judgment in Mohanlal's case and it is not necessary to repeat the same.

14. Mr. Shah then referred me to a judgment of a Division Bench of this Court in Anant Purshottam Athavle v. Damodar Dattatraya Bedekar, (Spl. Civil Appln. No. 1668 of 1975 decided on 7th Jan, 1980) : (Reported in : AIR1980Bom257 ). This judgment delivered by Chan-durkar J. deals with Explanation I to Section 12 of the Bombay Rent Act and points out that the tenant would be regarded as showing his readiness and willingness to pay the standard rent if he made the payments regularly as mentioned in the said Explanation. In para 8 of the judgment it has been specifically mentioned as follows:--

'However, in a case where the tenant has applied for determination of standard rent within a period of one month after the notice given by the landlordunder Section 12(2), the first Explanation becomes relevant.....'

An argument was advanced before the Division Bench that it was not necessary to make the payments regularly because the word 'regularly' did not appear in Explanation I. This contention was firmly rejected by the Division Bench. The question whether if the Court itself permitted the tenant to deposit the amounts on dates different from those originally fixed there would be compliance with the conditions mentioned in Explanation I to Section 12(2) was not before the Division Bench and was, naturally, not answered by it. Moreover I am here concerned with Section 12(3)(b) and in particular with the expression 'as directed by the Court' in it.

15. After considering the judgments which are binding upon me and which have been given after the judgment in Mohanlal's case, I am of the opinion that the view which I have expressed in Mohanlal's case has not been shaken in any manner. In the present case, the record clearly shows that the tenant has deposited the amount every time after making an application to the Court and after obtaining an order from the Court. I do not see how it can be said that he had not deposited the amounts as directed by the Court. I must, however, mention that it is only when the Court accepts or permits the belated payments that the payments will be deemed to have been made in accordance with directions of the Court as mentioned in Section 12(3)(b) of the Act. It is always desirable that the Court before permitting or accepting the belated payments should hear the other side and satisfy itself that there was sufficient cause for not making the payments according to the schedule originally fixed. In view of this legal position, it must be held that the petitioner has complied with the conditions mentioned in Section 12(3)(b) of the Bombay Rent Act and no decree for eviction could be passed against him on the ground that he was guilty of default in the payment of the arrears of rent.

16. The decree passed by the learned Assistant Judge, however, cannot be reversed even when I am holding in favour of the petitioner on the question of the default in the payment of arrears ofrent, because the decree which is also passed on the ground mentioned in Section 13(1)(g) read with Section 32 of the Bombay Rent Act is valid. Mr. Rane, however, challenges the jurisdiction of. an appeal Court in appeals arising under the Rent Act to reverse a finding of the trial Court and give a fresh basis to the decree in the appeal Court without the respondent having preferred an appeal or cross-objection against the finding of the trial Court which is sought to be reversed by the appeal Court. The provisions of Order XLI, Rule 22 of the Civil P. C. specifically provide that a respondent may support the decree under appeal on a ground which has been held against him in the Court below. It is not necessary for him to prefer an appeal or cross-objection against a finding. An appeal or cross-objection lies against a decree and not against a finding. However, Mr. Rane wished to point out that the provisions of Order XLI, Rule 22 cannot and should not be invoked in appeals arising under the Rent Act, especially under the Bombay Rent Act. He analysed the scheme of this Act and pointed out that a decree for possession under the said Act can be passed on different grounds. The suit itself may pray for a decree on several grounds. The trial Court may reject some of the grounds and may pass a decree on other grounds. If the grounds are reversed by the appeal Court then it will cause considerable prejudice to the tenant because the consequences following from a decree for eviction passed will be different depending upon the ground on which the decree for possession is passed. Illustrating his argument Mr. Rane pointed out that if a decree for possession is passed on the ground of arrears of rents or on any of the grounds mentioned in Section 13(1)(a) to (f) of the Bombay Rent Act, there is no obligation of any type imposed upon the landlord. If, however, a decree for possession is passed on the ground mentioned in Section 13(1)(g) of the Act the landlord is under an obligation to occupy the suit premises within one month after obtaining the possession of the same and again he is under an obligation not to let out the said premises within one year to any person other than the original tenant. This is so provided in Section 17 of the Bombay Rent Act. If this condition is contravened by the landlord the tenant is given a right to apply to the Court to order the landlord to reinstate him in the premises from which he had beenearlier evicted. Similar obligation is imposed upon the landlord if he obtains possession of the premises on the ground mentioned in Section 13(1)(i) of the Bombay Rent Act. He also further pointed out that when the landlord seeks eviction of the tenant under Section 13(1)(hh) of the Rent Act he is required to give undertaking as mentioned in Section 13(3A) of the Rent Act. Similarly different obligations are imposed upon the landlord who seeks to obtain possession of the premises under Clause (h) of Section 13(1) of the Bombay Rent Act.

17. Broadly speaking, two classes of decrees are likely to be passed under the Bombay Rent Act. Decrees of one class when executed do not entail any further obligation on the part of the landlord whereas decrees in the other class when executed entail the imposition of certain obligations on the landlord and also the imposition of certain conditions. Non-compliance with such conditions may result in penal consequences. The latter class of decrees are protective of the interests of the tenants to considerable extent. The landlord may press many grounds in support of his claim for possession. One of the grounds may result in the passing of a decree belonging to the first class; the other grounds may result in the passing of a decree belonging to the second class. If the trial Court passes a decree mentioned in the second class and refuses to pass a decree in the first class, there is certain protection given to the tenant. In the appeal Court it may be found that the findings of the trial Court are reversible. If it is found by the appeal Court that the finding of the trial Court giving rise to a decree belonging to the second class is erroneous, the landlord may attempt to support the decree under the provisions of Order XLI, Rule 22 by challenging the finding which has been given against him. If the appeal Court accepts his contention in that regard, then the decree which will be confirmed by the appeal Court, though on a ground other than the one which was upheld by the Court of first instance, will be a decree belonging to the first class. This will result in the removal of certain protection or benefit which was available to the tenant as a result of the decree passed by the trial Court. Mr. Rane has, with considerable amount of justification, said that ultimately a different type of decree has come into existence in this case as a result of the reversal of the finding at the appellatestage under Order XLI, Rule 22 of the Civil P. C. He, therefore, says that when the landlord is attempting to urge that the finding of the trial Court on a particular ground is erroneous, he is not supporting the decree but attempting to bring into existence a decree of a different type in the appeal Court. From this decree of a different type, different consequences and liabilities will ensue. This is not permissible, according to Mr. Rane, under the provisions of Order XLI, Rule 22 of the Civil P. C. though under the said provisions themselves there are no restrictions of any type.

18. There is considerable substance in this contention of Mr. Rane. However, I notice that this question has two aspects. First, merely because an appeal arises from a decree passed under the Rent Act, the application of Order XLI, Rule 22 of the Civil p. C. is not automatically excluded. Even under the Rent Act decrees may be passed on more than one ground and if in appeal such decrees are upheld on one rather than the other ground prejudice may not be caused to the appellant at all. In such a case there is no reason why the provisions of Order XLI, Rule 22 of the Code of Civil Procedure should not be applied. In Bhagavatula Pullayya v. M. Anandan Chetti, AIR 1972 AP 66, Seetaram v. Smt. Ramabai, : AIR1958MP221 and Joseph D'Souza v. State of Mysore, AIR 1972 Mys 261, the provisions of Order XLI, Rule 22 of the Code of Civil Procedure were held to be applicable to appeals arising from decrees under the Rent Act. However, in none of these cases the question as formulated by Mr. Rane was raised and was, therefore, not answered.

19. The second aspect of the question arises where the trial Court has negatived the claim of the landlord on one ground but has decreed the suit on another ground and in the appeal by the reversal of the grounds a prejudice is caused to the tenant. In such a case the tenant may justifiably complain about the procedure adopted under Order XLI, Rule 22 of the Civil P. C. However, I do not wish to express any final opinion on this aspect of the case, because it is not necessary to do so on the facts of this ease. In the instant case, by the appeal Court upholding the decree on the additional ground of the requirement of the landlord has not caused any prejudice to the tenant. Indeed, by my finding givenabove that the landlord is not entitled to the decree on the ground of default in the payment of arrears of rent, the only ground on which the decree now stands is the ground mentioned in Section 13(1)(g) of the Bombay Rent Act. This in effect bestows benefit upon the tenant. On the facts of this case, therefore, it can be said that the decree for eviction now supported by a ground which had been originally negatived by the trial Court cannot be the subject-matter of complaint by the tenant. I, therefore, refuse to interfere with the said decree on the ground that the provisions of Order XLI, Rule 22 of the Code of Civil Procedure are not applicable without deciding the question whether they are applicable or not.

20. After having gone through the judgment of the appeal Court below I am satisfied that the finding both on the question of bona fide requirement and on the question of comparative hardship recorded by the appeal Court is a finding of fact disclosing no error and, therefore, not inviting interference from this Court under Article 227 of the Constitution.

In the result this petition must fail. Rule is accordingly discharged with costs.

21. Petition dismissed.


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