Skip to content


B.S. Kerkar Vs. P.N. Shah - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application Nos. 150 and 151 to 163 of 1958
Judge
Reported in(1960)62BOMLR992
AppellantB.S. Kerkar
RespondentP.N. Shah
DispositionAppeal Dismissed
Excerpt:
.....of 1947), section 29-bombay civil courts act (bom. xiv of 1869), sections 5, 8, 14, 16, 17-whether assistant judge has jurisdiction to hear and dispose of civil revisional applications under section 29(3) of bombay rent act.; an assistant judge has jurisdiction to hear and dispose of civil revisional applications filed in the district court under section 29(3) of the bombay rents, hotel and lodging house rates control act, 1947.; vishwanath v. prabhakar (1960) 62 bom. l.r. 950 , differed from.;nagendra nath dey v. suresh chandra dey (1932) l.r. 59 i.a. 283 : s.c. 34 bom. l.r. 1065, referred to. - - the district court has to satisfy itself that the order complained of was according to law. if the order complained of is not according to law, the district court has jurisdiction to pass..........question we are called upon to consider in these 14 civil revisional applications is, whether the learned assistant judge had jurisdiction to hear and dispose of civil revisional applications filed in the district court under section 29(3) of the bombay rents, hotel and lodging house rates (control) act, 1947, hereinafter called, for brevity's sake, the bombay rent act.2. the petitioner before us in these 14 civil revisional applications is a landlord. ho owns two buildings, one of which has 10 double-room tenements and the other has 7 single-room tenements. one of these single-rooms has been given to one bake who collects rent from other tenants. the landlord charges rs. 30 per month for the double-room and bs. 20 for the single-room. this is the contract rent.3. all the 16.....
Judgment:

Patwardhan, J.

1. The question we are called upon to consider in these 14 civil revisional applications is, whether the learned Assistant Judge had jurisdiction to hear and dispose of civil revisional applications filed in the District Court under Section 29(3) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, hereinafter called, for brevity's sake, the Bombay Rent Act.

2. The petitioner before us in these 14 civil revisional applications is a landlord. Ho owns two buildings, one of which has 10 double-room tenements and the other has 7 single-room tenements. One of these single-rooms has been given to one Bake who collects rent from other tenants. The landlord charges Rs. 30 per month for the double-room and Bs. 20 for the single-room. This is the contract rent.

3. All the 16 tenants-Bake did not join them-made applications under Section 11(1)(a) of the Bombay Rent Act for fixation of standard rent on the allegation that the rent at which the premises were let was excessive. The tenants contended that the fair rent for the double-room would not be more than Rs. 16 and for the single-room not more than Rs. 11.

4. The Rent Court, i.e., the learned Judge J.D., Thana, entered into an elaborate enquiry and came to the conclusion that the contractual rent was the standard rent and dismissed the tenants' applications on June 11, 1956. He held that the standard rent for the double-room was Rs. 30 and the standard rent for the single-room was Rs. 20.

5. No appeals lay from the orders made by the Rent Court when that Court fixed the standard rent. The tenants' application for fixation of standard rent was not made in any suit or proceeding in which an appeal lay. This admitted position follows from the following material portion of Section 29(1) :

Provided that no such appeal shall lie from....

(III) an order made upon an application for fixing the standard rent or for determining the permitted increases in respect of any premises except in a suit or proceeding in which an appeal lies.

6. Being aggrieved by the aforesaid orders, only 14 tenants, out the 16, applied to the District Court, Thana, under Section 29(3). These civil revisional applications were heard by the learned Assistant Judge, who allowed the applications. He came to the conclusion that the rent charged by the landlord was excessive and he fixed the standard rent at Rs. 25 in the case of the double-room and Rs. 16-7-0 in the case of the single-room.

7. The landlord has come in revision under Section 115 of the Civil Procedure Code, against these orders of the learned Assistant Judge, Thana.

8. The first point taken on behalf of the landlord in these civil revisional applications before us is that the learned Assistant Judge had no jurisdiction to hear applications under Section 29(3) of the Bombay Rent Act. The material portion of Section 29(3) is in these terms:

Where no appeal lies under this section from a decree or order in any suit or proceeding, the District Court, may for the purpose of satisfying itself that the decree or order made was according to law, call for the ease in which such decree or order was made and pass such order with respect thereto as it thinksfit.

In order to determine this question it is necessary to refer to Sections 5, 8, 14. 16 and 17 of the Bombay Civil Courts Act, 1869 (Bombay Act XIV of 1869). An application under Section 29(3) is undoubtedly an application under a special Act. The District Judge had the power to refer applications under special Acts to any Assistant Judge for disposal. The marginal note to Section 16, how-over, says that Section 16 deals with the original jurisdiction of Assistant Judges, and the argument is that as applications under Section 29(3) are applications in revision, they are not original applications and, therefore, Section 16 will not apply. The marginal notes do not form part of the section, and though it is permissible to use the marginal note for the purpose of interpretation, the note need not cramp the interpretation, if the words of the section are clear and unambiguous. Section 16 in terms permits the District Judge to refer applications under special Acts to any Assistant Judge for disposal. The revisional application under Section 29(3) of the Bombay Rent Act is undoubtedly an application though it is not an application in the original jurisdiction but under the revisional jurisdiction. We are bound to give effect to the words used by the Legislature and there is nothing in the language used to compel us to hold that Section 16 is to be restricted to matters in the original jurisdiction. Section 16 also gives the District Judge power to transfer miscellaneous applications to the Assistant Judge-miscellaneous applications even if they are of the nature of appeals. The words ''not being of the nature of appeals' have been deleted by Bombay Act XCIV of 1958. Applications under Section 29(3) can even be considered as miscellaneous applications that have to be heard by the District Court. The District Judge has power to transfer them to an Assistant Judge, whether they are of the nature of appeals or otherwise. If applications under Section 29(3) are termed as miscellaneous applications, they would directly fall within the ambit of Section 16 and the Assistant Judge would have jurisdiction to dispose of such applications. There is no difficulty in characterising applications under Section 29(3) as miscellaneous applications.

9. Even Section 17 could be pressed into service to arrive at the same conclusion. Section 17 is in these terms:

The Provincial Government may by notification in the official Gazette, empower any Assistant Judge to try such appeals from the decrees and orders of the subordinate courts as would lie to the District Judge and as may be referred by him to the Assistant Judge.

Decrees and orders passed under this section by an Assistant Judge shall have the same force and shall be subject to the same rules as regards procedure and appeals as decrees and orders passed by the District Judge.

An Assistant Judge could validly try appeals referred to him under Section 17. These revisions under Section 29(3) are in substance in the nature of appeals. The District Court has to satisfy itself that the order complained of was according to law. If the order complained of is not according to law, the District Court has jurisdiction to pass any such order with respect thereto as the District Court may deem fit. This jurisdiction by its very nature is in the nature of an appellate jurisdiction. If a revision could be heard by a District Judge, the Provincial Government has the power to empower Assistant Judges to try matters which are of the nature of appeals. As the Privy Council has stated in Nagendra Nath Dey v. Suresh Chandra Bey (1931) L.R. 59 IndAp 283 : S.C. 34 Bom. ( 287) :.application by a party to an Appellate Court, asking it to set aside in revision a decision of a subordinate Court is an appeal within the ordinary acceptance of the term.

10. Our attention has been drawn to the decision of Mr. Justice Naik in Vishwanath v. Prabhakar : (1960)62BOMLR950 in which he has taken a different view from the one we are taking. Mr. Justice Naik has held that a civil revisional application under Section 29(3) could not be heard by an Assistant Judge as the District Judge has no power to refer such matters to Assistant Judges under Section 16. Mr. Justice Naik has held that Section 16 must be restricted to applications in the original jurisdiction and as applications under Section 29(3) could not be considered to be original in their nature, Section 16 will not apply and the Assistant Judge will have no jurisdiction to deal with these applications. With respect, we do not agree with this conclusion. An Assistant Judge can hear appeals from decrees or orders under the Rent Act. Such appeals could be transferred to him under Section 17. A revision under Section 29(3) is as good as an appeal except that interference is restricted to questions of law. Even in a second appeal, interference is restricted to questions of law under Section 100 of the Civil Procedure Code. If the Assistant Judge can legitimately hear appeals under the Bombay Rent Act, there should not be any objection in principle to his hearing revisions. An Assistant Judge is as much an integral part of the District Court as the District Judge himself. We are entitled to put a construction on the statute so as to confer jurisdiction rather than to oust it. Hundreds of civil revisional applications under Section 29(3) must have been heard and disposed of by Assistant Judges and if we hold that Assistant Judges have no jurisdiction to hear such civil revisional applications, all those orders will he null and void as without jurisdiction. This consideration has also weighed with us in arriving at the conclusion at which we have arrived.

11. We have heard Mr. Gokhale on the merits, but we are not inclined to interfere with the order of the learned Assistant Judge on the merits. Mr. Gokhale has contended that the learned Assistant Judge had no jurisdiction to interfere with findings of fact arrived at by the learned trial Judge. According to Mr. Gokhale, the only jurisdiction, which the learned Assistant Judge could have exercised, was to satisfy himself that the order made by the trial Judge was according to law. According to Mr. Gokhale, the learned Assistant Judge accepted all the findings arrived at by the learned trial Judge and in spite of the acceptance of those findings varied the standard rent. Mr. Gokhale pointed out authorities of this Court which lay down that the landlord is entitled to a gross return of 8-2/3 per cent. on his investment in the construction of a building and a gross return of 6 per cent. on the value of the land. Mr. Gokhale contended that if these considerations are borne in mind, the standard rent would be the same as the contractual rent. We are hearing these applications under Section 115 of the Civil Procedure Code, and interference with orders under revision is discretionary. We have also no jurisdiction to interfere with questions of fact. The learned Assistant Judge considered the whole case in all its aspects and came to the conclusion that the contractual rent was not the standard rent and he reduced the standard rent by a few rupees. It is not possible to say that this finding of the learned Assistant Judge is without jurisdiction. He sent for the record of the case, satisfied himself as to whether the order under revision was according to law, and passed an order which he thought fit with respect thereto. If the learned Assistant Judge came to the conclusion that the landlord could get a fair return by charging the tenants a rent which, according to the learned Assistant Judge was the standard rent, it will not be possible for us to say that he acted without jurisdiction.

12. The result, therefore, is that these applications fail and the rules are discharged with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //