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Sabavva Kom Hanmappa Simpiger Vs. Basappa Andaneppa Chiniwar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 1167 of 1954
Judge
Reported in(1955)57BOMLR261
AppellantSabavva Kom Hanmappa Simpiger
RespondentBasappa Andaneppa Chiniwar
DispositionAppeal dismissed
Excerpt:
bombay rents, hotel and lodging house rates control act (bom. lvii of 1947), sections 28, 12, 13-arbitration act (x of 1940), section 17-civil procedure code (act v of 1908), order xxiii, rule 3-dispute between landlord and tenant regarding rent and termination of tenancy referred to arbitration-court empowered under act to decide such dispute passing decree in terms of award given by arbitrators-whether court has jurisdiction to pass such decree-executability of decree.;the words 'no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question' in section 28 of the bombay rents, hotel and lodging house rates control act, 1947, exclude reference to arbitration of a dispute relating to recovery of rent or possession of.....dixit, j.1. this second appeal raises a question under section 28 of the bombay rents, hotel and lodging house rates control act, 1947. the circumstances giving rise to the execution application in which the question arises are these.2. one sabavva kom hanmappa simpiger, a resident of muddebihal in the bijapur district, is the owner of a shop situated in the muddebihal town. the owner let out the shop to the two defendants upon a lease which commenced on november 11, 1949. the period of the lease expired on november 10, 1950. the annual rent reserved was a sum of rs. 450. the tenants did not vacate the shop in accordance with the terms of the rent note and so a dispute arose between the parties. on november 16, 1950, the dispute was referred to arbitration and the arbitrators (panchas).....
Judgment:

Dixit, J.

1. This second appeal raises a question under Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The circumstances giving rise to the execution application in which the question arises are these.

2. One Sabavva Kom Hanmappa Simpiger, a resident of Muddebihal in the Bijapur District, is the owner of a shop situated in the Muddebihal town. The owner let out the shop to the two defendants upon a lease which commenced on November 11, 1949. The period of the lease expired on November 10, 1950. The annual rent reserved was a sum of Rs. 450. The tenants did not vacate the shop in accordance with the terms of the rent note and so a dispute arose between the parties. On November 16, 1950, the dispute was referred to arbitration and the arbitrators (panchas) after hearing the contentions of the parties gave an award on November 17, 1950.

3. A proceeding was then taken to file the award in the Court and the proceeding came to be numbered as Civil Suit No. 455 of 1950 on the file of the Court of the Civil Judge of Muddebihal at Muddebihal. On January 31, 1951, the Court passed a decree in terms of the award and the material terms of the decree were as follows:

The defendants do make vahiwat of the suit shop...up to the 1st of Kartik Shuddha of the Shaka year 1874 (i.e. 19-10-1952 A.D.), as tenants on rent (and) thereafter deliver up possession of the plaintiff's shop to her.

Clause 2 of the decree then provides for the payment of the amount of the rent on certain specified dates. Clause 3 is also material and it runs as follows:

If the defendants fail to pay in time, the amount of any of the instalments as mentioned above, the plaintiff do recover at once the amount of the instalment in default and do take possession of the shop, at once and do make vahiwat thereof as owner.

Clause 5 which is also material is in the following terms:

At the time of giving up (possession of) the shop the defendants are not to raise any objection in any manner whatever.

On October 22, 1952, the plaintiff-decree-holder filed an execution application to execute the decree and sought to recover possession of the property in suit. This application for execution was resisted by the defendants principally upon two grounds. Firstly, it was contended that the relief sought by the decree-holder for possession was contrary to the provisions of the Bombay Rent Control Act and, secondly, that the defendants-judgment-debtors were statutory tenants. The executing Court allowed the darkhast to proceed, holding that the decree was not contrary to law and that the judgment-debtors could not claim the benefit of Section 12(i) of the Bombay Rent Control Act. From this order the judgment-debtors appealed in the District Court, Bijapur, and the learned Assistant Judge allowed their appeal and dismissed the darkhast, holding that the decree passed by the Court on January 31, 1951, was without jurisdiction. From the appellate decree the plaintiff-decree-holder has come up in second appeal.

4. Upon this appeal, Mr. Datar for the appellant contends that the Court below was wrong in holding that the decree sought to be executed was one without jurisdiction. At the outest, it may be observed that two points were raised in the lower appellate Court. One of these was one relating to the question of jurisdiction and the other was about the judgment-debtors being contractual tenants. This latter question was rejected by the lower appellate Court and has not been repeated in this Court. The only question for decision, therefore, is whether the lower appellate Court was right in holding that the decree passed by the Court on January 31, 1951 was one without jurisdiction.

5. Now, the question turns upon the proper interpretation of a part of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. As the question is one of interpretation, it would be convenient, I think, to reproduce the material part of the section. It runs as follows:

Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction,...

(b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge, the Court of the Civil Judge (Senior Division) having ordinary jurisdiction shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions ; and subject to the provisions of Sub-section (2), no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.

One obvious comment upon the section is to say that the section has a very wide connotation. Under the section certain Courts named in that section have been given the power to entertain and try a suit or a proceeding between a landlord and a tenant and those Courts also have been given the power to decide an application made under the Act, as also to deal with any claim or question arising out of the Act or any of its provisions. There is no dispute as regards the first part of the section. The part of the section which has given rise to the controversy between the parties is that part which is 'no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question'. To my mind, the concluding part of Section 28(i) presents two aspects. It either means that it is only the particular Courts mentioned in the section which have been given jurisdiction to entertain the matters specified in the section and no other Court has been given such jurisdiction. The other aspect is that what the section prohibits is the entertaining of any suit or proceeding only by any other Court and it has no reference whatever to a proceeding initiated by way of an arbitration. Mr. Datar appearing for the plaintiff-decree-holder contends for the latter view. The first aspect has been supported by Mr. Jahagirdar appearing for the judgment-debtors and the question for decision is which of the two possible views is the correct view.

6. Now, the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, was passed in order to regulate the relations between a landlord and a tenant, as also to control the rents and to provide for repairs of certain premises, as also to provide for rates of hotels and lodging houses and to make provisions for evictions. To the extent to which this is a special piece of legislation, it undoubtedly modifies the law of the land. The provisions relating to a lease are enacted in Section 105 and the following sections in the Transfer of Property Act, 1882, and the intention being, therefore, to regulate the relations between a landlord and a tenant, it is obvious that Section 28 was enacted in Order to confer jurisdiction upon certain Courts and not upon others. An indication of the intention of the Legislature in making special provisions with respect to the relations between a landlord and a tenant may be had by reference to Sections 12 and 13 of the Act. Section 12(1) provides that

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.

Section 12(2) prohibits the institution of a suit by a landlord against a tenant on grounds specified in that sub-section. Section 12(3)(a) prescribes the circumstances under which the Court may pass a decree for eviction in a suit for recovery of possession. Section 12(3)(b) is important and it provides that:.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 continues 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.

Therefore, under Section 12(3)(b) it would not be open to a Court to pass a decree for eviction where on the first day of hearing of the suit the tenant pays or tenders in Court the standard rent and permitted in creases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases. This benefit is also extended to a tenant who does not pay the amount of the rent in the trial Court but pays it in appeal. Then there is Section 13 and it sets out the circumstances under which a landlord will be entitled to recover possession of the premises and the circumstances are set out in Clauses (a) to (1) of the section. Section 13(2) is important. It provides that:

No decree for eviction shall be passed on the ground specified in Clause (g) of Sub-section (1) if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it.

It is clear, therefore, that Section 13(2) prohibits a Court from passing a decree for eviction if the balance of convenience is in favour of the tenant and is against the landlord. Then there is Section 13(3) which sets out the circumstances in which the Court may pass a decree on grounds specified in Clause (h) or (i) of Sub-section (1) only in respect of a part of the premises and finally Section 13(3A) sets out the circumstances under which a decree for eviction will not be passed on grounds specified in Clause (hh) of Sub-section (2). It is obvious that a perusal of Section 12 and Section 13 shows that certain benefits are conferred upon a tenant, and whether or not a tenant is entitled to those benefits will depend upon the satisfaction of the Court which is called upon to pass a decree for possession in favour of the landlord and against the tenant.

7. It is with this background that one has now to consider the effect of arbitration and the award following it which has led to the passing of the award decree. Now, the arbitration took place under the Arbitration Act, 1940, without the intervention of the Court and an award was made by the arbitrators (panchas) and under Section 17 the Court has to pass a decree. Section 17 provides that:

Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award.

The only impediment is the one afforded by Section 30 and Section 30 enumerates the grounds for setting aside the award. If, therefore, the application for setting aside the award does not succeed or if no application is made, then under Section 17 the Court has to proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree is to follow. In the present case the Court of the Civil Judge, Muddebihal, passed a decree in terms of the award on January 31, 1951, and the decree provided for, inter alia, possession of the property to be given to the plaintiff and by the defendants in circumstances mentioned in Clause 1 of the decree. The question which then arises is : Is the decree passed by the Court a decree passed by it after applying its mind to the provisions of the Act or is it merely a decree following a decision made by an arbitrator? In other words, is it the decision of the arbitrator and not the decision of the Court which had ended in the decree? Now, the expression 'no other Court' as occurring in Section 28 may either mean that it is any other Court that is prohibited from entertaining a suit or it may mean a Court other than the Court mentioned, which may include an arbitrator. The expression 'Court' means 'a tribunal empowered to hear and determine issues between parties, upon pleadings either oral or written, and upon evidence to be adduced under well-defined and established rules, according to settled principles of law' (See The Law Lexicon of British India by Ramanatha Aiyar, 1940, p. 254). The expression 'arbitrator' is also defined in the same book at p. 81. It is as follows:

The arbitrator is the person to whose attention the matters in dispute are submitted-a judge of the parties' own choosing, whose functions are judicial and whose duties are not those of a mere partisan agent, but of an impartial judge, to dispense equal justice to all the parties, and to decide the law and facts involved in the matters submitted, with a view to determining and finally ending the controversy.

The expression 'Court' is defined in the Indian Evidence Act. It says that 'Court' includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence'. This shows that the expression 'Court' as used in the Indian Evidence Act does not include an arbitrator. Besides, it is well settled that an arbitrator is not bound by technical rules of evidence.

8. Mr. Datar contends that the expression 'Court' occurring in 'no other Court' in Section 28(1) can only mean the Court as ordinarily understood and will not include an arbitrator. Mr. Jahagirdar contends for the opposite view and he says that although it is not correct to say that an arbitrator is a Court, an arbitrator is for all purposes in the position of a Court. If the expression 'no other Court' as occurring in Section 28(2) is construed literally, Mr. Datar would seem to be right. But in this case we have to answer ourselves a further question which is, what is the true effect of Section 28(2) when it says that 'no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question? As I said in an earlier part of this judgment, the intention of the Legislature is to constitute certain Courts which have been given power to deal with certain specified matters as enacted in the Act. If, therefore, it is the exclusive jurisdiction of such Courts to entertain a suit, a proceeding or an application and to deal with any claim or question arising out of the Act, surely it is that special Court and that special Court alone which will have power to deal with these matters, and although Section 28(1) does not, in express terms, exclude an arbitrator, it must be held that, by necessary implication, an arbitrator is prevented from dealing with matters which arise under the Act. This may seem to be an extra-ordinary result because this, in effect, would supersede the law of arbitration. It would be entirely for a party to choose its own tribunal. A party may elect to go to an ordinary Court or a party may choose its own tribunal for the settlement of a dispute, and to hold that the expression 'no other Court' includes an arbitrator would, in effect, amount to saying that the law of arbitration cannot apply to a proceeding under Section 28 of the Act. This result, though it may, at first sight, seem to be startling, is implicit in the meaning of Section 28(1). An indication of the mind of the Legislature as to why any other Court should be prevented from having jurisdiction can be gathered from the provisions of Section 12 and 13. If, therefore, the Court is called upon to give a decision not in the light of the provisions contained in Sections 12 and 13 but merely called upon to give effect to an award which is nothing but a decision of an outside agency, it would be impossible to carry out the provisions of the Act. While, therefore, it may be conceded that there is a good deal of force in the contention of Mr. Datar for the appellant, I am not satisfied that it would be a reasonable view to take that in spite of the mandatory, and if one may say so, almost imperious provisions contained in Section 28(1), an arbitrator should be allowed to deal with matters falling under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Mr. Datar says that if a dispute arising under the Bombay Rents, Hotel and Lodging House Rates Control Act is not referred to arbitration, then it would virtually amount to rendering the law of arbitration nugatory. If such a result follows, it is, I think, inevitable. According to Section 12 if a defendant pays the amount of the rent on the first day of hearing of the suit, the Court cannot in that event pass a decree for possession. Again, according to Section 13 the Court has to look to the balance of convenience of the parties and then to make an order for possession. If arbitrators appointed by parties decide in a manner contrary to the provisions of Sections 12 and 13, the result will be that the provisions of Sections 12 and 13 will be rendered nugatory. But that surely is not the intention of the Legislature. Mr. Datar also urged that it may result in making the provisions contained in Order XXIII, Rule 3, of the Code of Civil Procedure nugatory. In my opinion, Mr. Datar is not right in his contention. In the latter case the suit will be filed in a Court contemplated by the Act. The Court will have to consider whether the terms of compromise are lawful, and if satisfied that they are lawful, then the Court has no option but to pass a decree in terms of the compromise. This is a different thing from saying that the law of arbitration is not affected by the provisions contained in Section 28(1).

9. This view has some authority in its favour. The learned Judge relied upon a decision reported in Mohammad Ibrahim Khan v. Ahmad Said Khan (1910) 6 I.C. 219 which is the same case as reported in Muhammad Ibrahim Khan v. Ahmad Said Khan I.L.R (1910) All. 503. Briefly stated, that was a case where there was a reference to arbitration in a case involving a public charity, the charity being a Waqf. One Ghulam Ghishti Khan created a Waqf and was the first mutawalli. He died and his son became mutawalli. On the death of the son, disputes arose about the succession between two other sons of the original founder and another person who was the son's son. This dispute was referred to private arbitration and an award was made favour of one of the sons of Ghulam. He applied to have the award filed in Court. The application was contested and the application was refused by the Court and from that order an appeal was brought in the High Court. The learned Judges, dealing with the matter, said as follows (p. 513):.A party can refer a matter of a private individual right of a civil nature to arbitration, but he has no power to refer a matter which is not purely of a private civil character....

Now, under Section 92 of the Civil Procedure Code the question is one in which the direction of the Court becomes necessary for the administration of the trust. If, therefore, in such a ease the matter was left for decision of an arbitrator without the intervention of the Court, it would result in the trust not being administered properly and according to the intention of the founder. It was for that reason that the High Court held that if the question is one of a private individual right, the matter may be referred to arbitration. But if the dispute relates to something more than that, then in that event it would not be open to the parties to refer the dispute to arbitration. The danger of allowing a dispute to be referred to arbitration is strikingly set out at page 513 of the report. This is what is said after quoting certain remarks of a judgment in Mahadeo Prasad v. Bindeshri Prasad I.L.R (1908) All. 137 :.These remarks, in our opinion, apply with greater force to an attempt to have the right of succession to the trusteeship of a public charity settled by arbitration. If that were allowed, a very wide door for collusion, misfeasance and malfeasance in respect of trust property would be opened.

The other case to be referred to is Mahadeo Parasd v. Bindeshri Prasad in which it was held that the appointment of a guardian to a minor, not being a matter of private right as between parties, is not a question which can be settled by reference to arbitration. Now, in a matter arising under the Guardians and Wards Act, it is the welfare of the minor with which the Court is concerned and it is only from the point of view of the welfare of the minor that a guardian is to be appointed by the Court, subject of course to the principles laid down in the Act. Now, if such a question was referred to arbitration, then it may well be that the interest of the minor which is the upper-most consideration in such a case may not be properly considered by the arbitrator. It is only from this point of view that the Allahabad High Court held that the question was not one which could be settled by reference to arbitration. It seems to me, with respect, that there is sound principle in support of this view. In the case of a public charity, the question is not one pertaining to an individual. In the case of a minor whose guardian is to be appointed the question is not merely one of choice between two individuals. The question rests upon the welfare of the minor and it is for the Court to decide what is best in the interest of the minor. The principle of the two Allahabad cases, therefore, seems to be that where there is sound principle on the basis of which Legislatures have constituted Courts for specific purposes, it would not be right to allow arbitrators to decide those questions, when those questions are to be decided in the manner laid down in the Act. This being the position, it seems to me that the decision which was embodied in the award was a decision of an arbitrator, and even though a decree followed in terms of the award, it remained to be a decision of the arbitrator and not a decision of a Court. Under Section 28(1) it is the Court mentioned in the Act that has to deal with the question arising under the Act and if that Court instead of satisfying itself as to what form the order should take merely accepted the decision of an arbitrator, it would be surrendering its own judgment in favour of the arbitrator. From this point of view, it seems to me that the decree which followed the award is one which is passed without jurisdiction.

10. But Mr. Datar contends that even if the decree is passed without jurisdiction, this is a question which cannot be taken up in excution. Now, the principles relating to the powers of an executing Court are well settled. An executing Court has to execute a decree as it finds it. It cannot question the validity, the legality or the correctness' of a decree. If the decree is invalid, is not legal or is not correct, it is a matter which must be taken in appeal. It is, therefore, well settled that in such a case the executing Court cannot refuse to execute the decree merely on the ground that the decree is invalid or the decree is illegal or the decree is incorrect. But it is equally well settled that if the Court which passed the decree, bad no jurisdiction to pass it, the question is one which the executing Court can decide and the executing Court on being satisfied that the Court which passed the decree had no jurisdiction to pass it can refuse to execute it. Mr. Datar for the appellant relies upon Karashiddayya Shiddayya v. Shree Gajanan Urban Co-operative Bank, Ltd. (1942) 45 Bom.L.R. 553. That was a case where an award was made between a society and a person who was not a member of the society. Obviously, an award between a society and a non-member would be ultra vires and a nullity. The award made in that case was executed as a decree of the Court and in the proceedings following execution a sale was held and it was confirmed. At that stage the plaintiff filed a suit claiming a declaration that the sale of the property in execution of the award was null and void and the purchaser got no title to the property under the sale. The trial Court held that the award was void, but that the suit was barred by estoppel and also barred by limitation. The trial Judge, therefore, dismissed the suit and the decree was confirmed in first appeal. From the appellate decree an appeal was brought in this Court and Mr. Justice Broomfield, who delivered the judgment of the Court, allowed the appeal, observing as follows (p. 560):.There was nothing on the face of the award decree to indicate that it was without jurisdiction. It was only after a suit brought for the purpose and after a consideration of the provisions of the Co-operative Societies Act that it has been found to be a nullity. The ease therefore is governed by the decision of our own High Court in Hari Govind v. Narsingrao Konherrao I.L.R (1913) 38 Bom 194, 16 Bom. L.R. 30 and the validity of the decree was not a matter which the executing Court wag competent to go into. Clearly, therefore, it would have made no difference whether the plaintiff had raised the point in the execution proceedings or not and the argument based on the principle of res judicata falls to the ground.

Now, in the first place, the question arose in a suit and not in proceedings in execution. In the second place, the case is also an authority for the proposition that all proceedings taken in execution of a decree which has been found to be a nullity are null and void and a decree which is a nullity is incapable of execution. In our opinion, this is, with respect, the correct principle. In the present case although the decree is passed by the civil Court, the decree embodies a decision not of the Court but; of the arbitrator. As, in our view, an arbitrator has no jurisdiction, to deal with a matter arising under the Act, the decree passed by the Court is one without jurisdiction. It is obvious, therefore, that the executing Court is entitled to refuse to execute the decree. If any authority is necessary, it is afforded by the decision in Sadashiv Mahadeo v. Mahomed Yakub : AIR1943Bom404 .

11. On these grounds, I think, the view taken by the lower appellate Court is right. The appeal, therefore, fails and the same will be dismissed with costs.

Vyas J.

12. I agree. A short but an interesting point of law which has arisen for decision in this appeal is whether, in a matter relating to the recovery of rent or possession of premises to which the provisions of Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, apply, the Court under Section 28 of the Act has jurisdiction to pass a decree in terms of the award made by the arbitrators chosen by the parties. The facts leading up to this Second Appeal have been stated by my learned brother in his judgment. Upon a dispute arising between the plaintiff and the defendants about the rent and termination of tenancy of a certain shop, the parties on November 16, 1950, referred the dispute to the arbitration of the two Panchas, Malkajappa and Sangappa and the arbitrators gave their award on November 17, 1950. The plaintiff's contention was that, according to the terms of the lease, the defendants were to vacate the shop on November 10, 1950, and she claimed possession on the ground that the shop was reasonably and bona fide required for occupation by herself. Although the arbitrators came to the conclusion that the shop was bona fide required by the plaintiff for nor personal use, they allowed the defendants to remain in possession thereof till October 19, 1952, on condition that the defendants paid Rs. 225 to the plaintiff as rent on each of the undermentioned dates:

13. December 1, 1950; June 1, 1951 ; December 1, 1951 and June 1, 1952.

14. The arbitrators gave the award accordingly and that was done, as I said, on November 17, 1950. Thereafter, the plaintiff made an application to the Court of the Civil Judge, Junior Division, Muddebihal, praying that a decree be passed in terms of the award. The said application was treated as suit No. 455 of 1950. In that suit, on January 30, 1951, a decree was passed by the Civil Judge, Junior Division, Muddebihal, in terms of the award of the arbitrators. On October 22, 1952, the decree-holder filed a darkhast to execute the decree against the judgment-debtors. The judgment-debtors opposed the darkhast and contended that the award was a nullity as the arbitrators had no jurisdiction under the Bombay Act LVII of 1947 to entertain and deal with any claim or question arising out of the Act or any of its provisions. Their further contention was that, as the decree was based on the award which was a nullity, the decree also was without jurisdiction. The Civil Judge, Junior Division, Muddebihal, rejected the contentions of the judgment-debtors and directed that the darkhast should proceed. On appeal, the learned Assistant Judge, Bijapur, held that the provisions of the Bombay Act I, VII of 1947 did not recognise recourse to the law of arbitration, did not recognise the tribunal of arbitrators and that, therefore, the reference to arbitration, the award and the decree based on the award were all without jurisdiction. He accordingly allowed the appeal of the judgment-debtors and dismissed the darkhast. Thereupon, the decree-holder has come to the High Court in second appeal.

15. On behalf of the plaintiff-decree-holder, Mr. Datar contends that, in so far as the plaintiff's application which was treated as suit No. 455 of 1950 asked for a decree for the recovery of rent and possession of the shop, i.e. the premises let out for trade within the meaning of Section 6(1) of the Act, it was a proceeding under Section 28 between a landlord and tenant and, therefore, the Court under Section 28 had jurisdiction to try that proceeding and decide it. It is contended that the Court of the Civil Judge, Junior Division, at Muddebihal, which passed the decree in suit No. 455 of 1950, was competent to pass a decree which it did pass; and, says Mr. Datar, simply because the decree was passed in terms of the award, it could not be said that the Court which was competent under Section 28 to pass a decree in a suit or proceeding relating to recovery of rent or possession and which did pass the decree in pursuance of that competence, did not have jurisdiction to pass it. It is argued for the appellant that what is expressly excluded by Section 28 is the jurisdiction of a Court other than the Court mentioned in Clauses (a) and (6) of the said section and it is said that an arbitrator is not a Court and therefore not excluded by the words 'no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question' in Section 28. In short, Mr. Datar's submission is that, for the purpose of dealing with and deciding a suit or proceeding under Section 28, the law of arbitration is not excluded, abrogated or superseded and arbitration is not forbidden. Therefore, says Mr. Datar, even in the matter of a suit or proceeding relating to recovery of rent or possession of premises to which the provisions of Part II of the Act apply, the parties can go to arbitration, the arbitrators can validly arbitrate and give an award, and when the award is given and a party files a suit or a proceeding to obtain a decree on the basis of it, a Court under Section 28 can competently pass a decree in terms of the award. It is contended that to hold that a recourse to arbitration is forbidden or excluded by Section 28 is to render nugatory the law cf arbitration in matters relating to recovery of rent, ejectments etc. We are told that the Legislature could not have intended to create such a position.

16. Mr. Datar's contention is opposed to the plain language of Section 28 which makes the intention of the Legislature amply manifest. Section 28 opens with the words 'Notwithstanding anything contained in any law' and there is no doubt that the Legislature intended to include in other laws the law of arbitration when they used the words 'in any law'. These opening words of the section clearly suggest, I think, that though under the law of arbitration it Would be open to parties at dispute regarding rights of a civil nature to refer the dispute to an arbitration, so far as the dispute is between a landlord and a tenant and so far as it relates to the recovery of rent or possession of premises to which the provisions of Part II of the Act apply, the Legislature intended to lay down and in terms laid down that the jurisdiction to decide the dispute shall vest in the Court mentioned in Clauses (a) and (6) of the section and in 'no other Court'. When the Legislature creates a special Court for entertaining, dealing with and deciding certain specified matters, the jurisdiction of other Courts, tribunals and bodies of persons, which they might under the ordinary law possess to entertain or deal with the said matters, is ousted or taken away by necessary implication ; otherwise, the creation of a special Court becomes meaningless for, the parties, if they are inclined to do so, can easily contract out of the provisions of Section 28 and can defeat the intention of the Legislature, namely that certain matters shall be entertained and dealt with only by certain Courts, by having recourse for instance to the law of arbitration. In my view; the words 'no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.' exclude resort to arbitration by necessary implication. Notwithstanding the creation of a special Court for the purpose, if landlords and tenants choose arbitrators for dealing with and deciding the disputes regarding recovery of rent and possession of premises, the special Court would become a mere award-recording machine. I do not think the Legislature intended to create such a result.

17. There is no doubt that a reference to arbitration is excluded by Section 28 of the Act and that becomes clear in this way also. If arbitration is not excluded, then if parties go to arbitration and if the arbitrators give an award and if the award directs that the tenant must deliver possession to the landlord on or before a certain date and if the Court has to pass a decree in terms of the award, what would happen in a case in which on the very first date of hearing before the Rent Court, before whom the award is filed for obtaining a decree in terms thereof, the tenant tenders rent in Court? Section 12(3)(b) of the Act provides that. 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 continues 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.

If the award directs eviction and if the Rent Court is obliged to pass a decree in terms of the award, it is clear that the purpose of enacting Section 12, Sub-section (3), Clause (b), will be frustrated. The Legislature could not have intended to enact provisions which could be by-passed or easily defeated. Thus, the provisions of Section 12(3)(b) also point to the exclusion of arbitration from the purview of Section 28 of the Act.

18. While dealing with and deciding a dispute between a landlord and a tenant, the special Court created under Section 28 has to consider whether the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases (Section 12(2) of the Act). It has also got to consider whether the tenant has committed any of the acts mentioned in Clauses (a) to (f) of Section 13. It has also got to determine whether the premises are reasonably and bona fide required by the landlord for the purposes specified in Clauses (g), (h) and (i) of Section 13 and has to see whether a particular case falls under Clauses (j), (k) and (1) of Section 13. These duties of a special Court cannot be transferred to any Court or tribunal at the will or option of the parties. They cannot also be delegated by the special Court to any other Court or tribunal. If the functions under the Act which are to be discharged by the special Court created by the Act are discharged by some other Court or tribunal and if a decree results, it is not a decree under the Act and a special Court created under the Act has no jurisdiction to pass a decree which is not a decree under the Act.

19. In Muhammad Ibrahim Khan v. Ahmad Said Khan I.L.R (1910) all. 503, it was contended by the appellant's learned advocate that whenever a party could institute a suit of a civil nature in a Court, that party could also refer that matter to arbitration. It was observed by the Court that no authority had been cited in support of this proposition and in the opinion of the Court it was not a universal proposition that, whenever a suit could be instituted in a civil Court, the subject-matter of that suit could also be referred to arbitration. An arbitrator is a tribunal chosen by the consent of parties, and unless the law allows them to choose such a tribunal in respect of certain classes of cases, they have no power to do so. We have seen that Section 28 which opens with the words 'notwithstanding anything contained in any law' and goes on to say '...no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question,' forbids by necessary implication the parties from referring their dispute to arbitration. Clearly, therefore, the arbitrators had no jurisdiction or power to give the award.

20. Mahadeo Prasad v. Bindeshri Prasad I.L.R (1908) All. 137 was a case in which a question arose for the appointment of a guardian to a minor and it was held that that was not a question which could be settled by reference to arbitration. The principle of the ease is that, where a special Court, i.e. a District Court, is created by the Legislature and is invested with power to appoint a guardian to a minor, parties cannot contract out of the provisions of the statute and have the matter settled by arbitration.

21. Mr. Datar says that the exclusion of jurisdiction intended by the words 'no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question' is in relation to 'other Court' and has no reference to the jurisdiction of arbitrators under the Arbitration Act. It is to be noted however that the arbitrator is the person to whose attention the matters in dispute are submitted. He is a judge of the parties' own choosing his functions are judicial and his duties are not those of a mere partisan agent, but of an impartial judge. He has to dispense equal justice to all the parties and to decide the law and facts involved in the matters submitted, with a view to determining and finally ending the controversy. (Aiyar's Law Lexicon, p. 81). In my view, therefore, the words 'no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question' in Section 28 exclude reference to arbitration of a dispute relating to recovery of rent or possession of premises to which provisions of Part II of the Act apply.

22. Mr. Datar has then contended that even if the decree, which was passed by the learned Civil Judge, Junior Division, Muddebihal, in terms of the award was without jurisdiction, the executing Court could not go behind the decree and must execute the decree. Mr. Datar's contention is that, so long as the decree is not set aside by having recourse to a legal proceeding, it must be given effect to and must be executed. In support of his contention, Mr. Datar has invited our attention to a decision of this Court reported in Karashiddayya Shiddayya v. Shree Gajanan Urban Co-operative Bank, Ltd. (1942) 45 BOm. L.R. 553. It is to be noted however that in that case there was nothing on the face of the award decree to indicate that it was without jurisdiction. As Mr. Justice Broomfield pointed out, it was only after a suit was brought for the purpose and after a consideration of the provisions of the Co-operative Societies Act that it had been found to be a nullity. In that view of the matter, Mr. Justice Broomfield said that the case was governed by the decision of this High Court in Hari Govind v. Narsingrao Konherrao I.L.R (1913) 38 Bom. 194, 16 Bom. L.R. The facts before us in this appeal are, however, entirely different. This is a case in which the decree which has been passed by the learned Civil Judge, Junior Division, Muddebihal, appears on the face of it to have been passed by a Court which had no jurisdiction to pass it, and the reason for this conclusion is obvious. There is no provision in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, for passing a decree in terms of an award. The decree with which we are dealing is undoubtedly a decree which was passed in terms of the award. Therefore, on the face of it, the decree was passed by a Court which had no jurisdiction to pass it. That being so the case upon which Mr. Datar has relied will not help him.

23. The next case to which Mr. Datar has drawn our attention is the case of Hari Govind v. Ndrsingrao Konherrao (1913) 16 Bom. L.R. 30. But it is to be noted that the said decision was overruled, by this Court in Sadashiv Mahadeo v. Mahomed Yakub : AIR1943Bom404 where the various authorities on the subject were reviewed and carefully considered.

24. In the result, therefore, I agree with my learned brother that the decree passed by the Civil Judge, Junior Division, Muddebihal is without jurisdiction and is not capable of execution. The appeal, therefore, fails and is dismissed.


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