Skip to content


Anita M. Harretto Vs. Abdul Wahid Sanaullah - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 3516 of 1980
Judge
Reported inAIR1985Bom98; 1985(1)BomCR130; (1983)86BOMLR485; 1984MhLJ931
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 11(4); Code of Civil Procedure (CPC), 1908 - Order 41, Rule 31
AppellantAnita M. Harretto
RespondentAbdul Wahid Sanaullah
Appellant AdvocateM.J. Miranda, Adv.
Respondent AdvocateD.P. Hegde, Adv.
Excerpt:
.....questions which arise in the appeal and require determination must be stated in the judgment. the learned judges of the courts of first appeal should not approach the appeals merely from the point of speedily disposing of the same. the appeals must be also intelligently disposed of after taking note of the arguments advanced, the points arising from the arguments and other material and then deciding those points properly.;mhasu v. davalat (1904) 7 bom. l.r. 174 referred to. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under..........footing that once there is a non-compliance with the order relating to the payment or deposit of rent passed under the first part of sub-sec. (4) of s. 11, the defence of the tenant is automatically struck off and, therefore, the tenant is not entitled thereafter to appear or defend the suit. such a course is not based upon a proper and correct understanding of the relevant provisions under examination. once the different steps involved in the exercise of the powers under s. 11(4) of the bombay rent act are properly understood, the court will not be too eager to wind up the defence and decree the suit, as has been happening in several cases.16. in the present case, i have already stated above that the learned judge when he passed the order on 29th august 1979 directing the tenant to.....
Judgment:
ORDER

1. The petitioner has challenged decree of eviction passed against him in proceedings arising under the Bombay Rents, Hotel and Lodging House Rates Control Act (hereinafter referred to as the 'Bombay Rent Act'). Regular Civil Suit No. 289 of 1978 was filed by the respondent in this petition against the petitioner in the Court of the Civil Judge, Junior Division, at Ulhasnagar on the ground that the petitioner was in arrears of rent which had not been paid despite the notice issued underS. 12(2) of the Bombay Rent Act. The claim for possession was also included in the suit. Thus the suit was one for recovery of rent with a claim for possession of the premises tenanted by the petitioner.

2. In that suit, on behalf of the respondent-landlord an application was made on 4th August 1979 under S. 11(4) of the Bombay Rent Act requesting the Court for a direction that the petitioner should pay all the arrears of rent at the rate of Rs.50/- per month forthwith 'failing which his defence may be struck off and he may not be permitted to appear and defend the suit'. On the same day, the learned Civil Judge directed that the other side should give its say in the matter. Accordingly, the petitioner submitted her say. Thereafter the learned trial Judge passed an order as follows :-

'The interim rent of the suit premises is fixed at Rs.50/- p.m. exclusive all other charges.

The defendant is directed to deposit in Court on or before 15-9-79 all the arrears of rent at that rate for the period from 1-12-77 till 31-8-79 and shall continue to deposit the future rent at that rate on or before 15th of every subsequent month.

The amount of rent if deposited for the period from 1-12-77 till 31-5-78 shall not be paid to the plaintiff during the pendency of this suit C. O. A.'

3. From the order reproduced above it is clearly seen that the learned trial Judge did not indicate anywhere in the order what the consequences of the non-compliance of the said order would be. However, on a report submitted by the Nazir of the Court on 15th September 1979 the learned trial Judge noted that the petitioner had not complied with the orders of the Court passed on 29th October 1979 and, therefore, he said that the petitioner's defences were struck off. From the record it is not clear and I have not been informed under what circumstances the learned trial Judge asked for the report of the Nazir and whether the order striking off the defence was passed after or without hearing the petitioner. In any case, that does not affect the discussion that has taken place before me and the decision which I am called upon to give on the facts and circumstances of this case.

4. Thereafter the learned trial Judge proceeded to decree the suit by his judgment and order dated 26th October 1979 in a judgment which consists of about 10 lines which are practically the mere recital of the respondent's case. The claim of the respondent was upheld and a decree as prayed for by the respondent was passed.

5. The petitioner preferred an appeal, being Civil Appeal No. 6 of 1980. The learned appellate Judge formulated the point which he is required to do under O. 41, R. 31 of the Civil P. C. as follows :--

'The only point for my consideration is whether the judgment and decree of the trial Court are liable to be set aside...'

He gave his finding in the negative and proceeded to dismiss the appeal which he did by his judgment and order dated 30th August 1980.

6. In my opinion, the point for determination framed by the learned Assistant Judge is hopelessly inadequate and indeed inaccurate. I will, in the course of the judgment, indicate a trend which is becoming monotonously routine whereby the Courts of first appeal are formulating the points for decision in a highly unsatisfactory manner. It is sufficient at this stage to state that the question before the learned Assistant Judge was not whether the judgment of the Court below was liable to be set aside. The question was whether the findings recorded by the Court of first instance were correct. This question could have been answered by him satisfactorily only if the learned Assistant Judge had framed the point for determination as to whether the Court of first instance was right in striking off the defence of the defendant in the suit.

7. The petitioner has, therefore, approached this Court under Art. 227 of the Constitution challenging the decree passed by the trial Court which has been confirmed by the Appeal Court below. Mr. Miranda, the learned Advocate appearing in support of the petition has naturally found fault not only with the manner in which the Appeal Court below has disposed of the appeal but also with the manner in which the Court of first instance has proceeded to decree the suit by striking off the defence without there being either in law or in fact a warrant for doing so. I have hear Mr. Miranda at great length on this question and I have also heard Mr. Hegde, the learned Advocate appearing for the respondent. After considering the rival submissions made before me, I am satisfied that the decree passed by the Court of first instance was illegal and the Appeal Court below totally misdirected itself on the scope of the appeal which was in turn based entirely on the fact of the striking off of the defence of the defendant in the suit. There is a total misunderstanding on the part of the Courts below of the scope of the provisions contained in S. 11(4) of the Bombay Rent Act.

8. Sub-sec. (4) of S. 11 of the Bombay Rent Act applies to proceedings pursuant to a suit for recovery of rent. It then does not matter whether the suit is for rent with a prayer or without a prayer for possession of the tenanted premises. If the suit is not for recovery of rent, then sub-sec. (4) of S. 11 will not come into operation at all. In Jamnadas Motimal v. Ishwaribai Tejandas : AIR1981Bom314 , it has been pointed out that the authority of the Court under S. 11(4) of the Bombay Rent Act to direct the tenant to deposit the amount of rent which it considers to be reasonably due to the landlord can be exercised by the Court at any stage of the suit for recovery of rent. Such powers cannot be exercised in any other suit between the landlord and the tenant.

9. As I have already indicated earlier, the suit filed by the respondent against the petitioner was undoubtedly one which was covered by the provisions of sub-sec. (4) of S. 11 of the Bombay Rent Act. The trial Court undoubtedly, therefore, had jurisdiction to pass orders under S. 11(4) of the Bombay Rent Act.

10. However, the trial Court proceeded to strike off the defence without following the proper procedure which it was required to do under the said provision. In order to understand the error committed by the Court of first instance in this case, it is necessary to notice carefully the provisions contained in S. 11(4) of the Bombay Rent Act. The said provision consists of three parts. The first part gives the power to the Court to make an order directing the tenant either to deposit the amount of rent in the Court or to pay the same to the landlord. This power, of course, is to be exercised subjected to the words mentioned in the opening part of the sub-section. As an extension of the same power, the Court can also make an order directing the tenant to deposit in the Court or pay to the landlord at his option such amount fixed by it as the interim standard rent during the pendency of the suit. Thus the first part relates to the fixation of the amount of standard rent and the direction to be given by the Court for paying the amount fixed as the standard rent either in the Court or directly to the landlord. At this stage itself the Court is not under an obligation to specify the consequences that may flow from a non-compliance with the order that it passes.

11. The second part of the sub-section empowers the Court again to direct that if the tenant fails to comply with any order made as aforesaid within such time as may be allowed by the Court, he, the tenant, shall not be entitled to appear in or defend the suit. It is conceivable that the procedures involved in the first and the second part may be telescoped by the Courts. In other words, the Court by the same order may direct the tenant to pay the amount and also mention that if he fails to comply with the order made for payment, he shall not be entitled to appear in or defend the suit. The Court may give such a direction regarding the consequences of the non-compliance with the order passed earlier at a later stage also if it does not give that direction simultaneously with the passing of the order relating to the payment to be made. The interpretation that the Court may give such a direction even at a later stage is consistent with the language contained in sub-sec. (4) of S. 11. It may happen that after the tenant has failed to comply with the order passed earlier relating to the payment of the rent, the landlord may make an application to the Court pointing out the default in the compliance with the order made earlier and in such a case also, the Court may give the direction as contemplated in the second part of sub-sec. (4) of S. 11.

12. It must, however, be noted that the consequences that may flow from the non-compliance with the order for payment passed by the Court earlier, do not flow from the provision of the law itself. On the other hand, the consequences will flow from a direction which the Court may, in exercise of the power given to it, choose to give as per the second part of sub-sec. (4) of S. 11. Therefore, it is clear that mere non-compliance with the order passed by the Court relating to the deposit of the amount will not automatically result in the striking off of the defence of the tenant unless prior to the stage of the striking off of the defence, the Court had given a direction as mentioned above.

13. In Laxmandas Chelaram v. Hemdas Hauromal, : AIR1984Guj154 , the learned Chief Justice of Gujarat High Court had occasion to consider the scope of section 11(4) of the Bombay Rent Act and has interpreted the same in the same manner in which I have interpreted it above. The learned Chief Justice has stated that the provision has to be understood and applied in its true spirit, viewing it as a deterrent provision and, at the same time, assuring all safeguards envisaged by the section to the tenant. The learned Chief Justice has also pointed out that the safeguards include a clear notice by the order of the Court that if a tenant failed to comply with the order directing a deposit within the time specified, he will not be able to appear in or defend the suit. It is only when such a notice is given that the tenant is aware of the consequences of his default. Proceeding further the learned Chief Justice has stated as follows (at P. 156) :--

'A mere direction to make a deposit within a particular time does not visit the consequence of the defence being struck off unless it be that there is a further direction by the Court that this would be done if compliance is not made within a time to be specified. In that event, a tenant, unable to comply, has an opportunity to show that for specified reasons he has not been able to make the deposit and still he may be relieved of the consequence of the order. Whether a Court does not pass an order that failure to deposit within a specified time will result in the consequence of the defence being struck off the defence for reason for non-deposit. That would be to go against the express language of the statute and to seriously infringe the safeguard envisaged against the application of the stringent provision in S. 11(4) of the Act.'

14. Now, we come to the third part of sub-sec. (4) of S. 11. This third part relates to the leave that may still be given to the tenant to appear in and defend the suit after the Court has given a direction that if the tenant fails to comply with the order relating to the deposit of rent, he shall not be entitled to appear in or defend the suit. If non-compliance with the said order occurs, the tenant is naturally debarred from appearing in or defending the suit. But this bar is not total and unqualified. On the other hand, the third part of the provision which we are examining allows a tenant to request the Court to give him leave and the Court is empowered to give leave and the Court is empowered to give leave subject to such terms and conditions the Court may choose to specify. In other words, by the direction which the Court may give under the second part of sub-sec. (4) to S. 11, the Court has no power to debar the tenant for ever from appearing merely because he has failed to comply with the order passed earlier relating to the deposit or payment of rent. Despite the fact that non-compliance with the order passed earlier may, in a case where the Court has already given direction under the second part of sub-sec. (4) of S. 11, result in the striking off of the defence, the tenant is still entitled to appear before the Court and apply for leave to defend on such terms and conditions as the Court may specify. The Court will not be justified in such a case in refusing to give the leave merely on the ground that the tenant had earlier not complied with the order passed relating to the deposit or payment of rent.

15. Unfortunately, I am finding that in several cases, Courts have been passing orders on the footing that once there is a non-compliance with the order relating to the payment or deposit of rent passed under the first part of sub-sec. (4) of S. 11, the defence of the tenant is automatically struck off and, therefore, the tenant is not entitled thereafter to appear or defend the suit. Such a course is not based upon a proper and correct understanding of the relevant provisions under examination. Once the different steps involved in the exercise of the powers under S. 11(4) of the Bombay Rent Act are properly understood, the Court will not be too eager to wind up the defence and decree the suit, as has been happening in several cases.

16. In the present case, I have already stated above that the learned Judge when he passed the order on 29th August 1979 directing the tenant to deposit the rent did not either then or thereafter direct the tenant that if he failed to comply with the order which he had made, he would not be entitled to appear in and defend the suit. On the order hand, on a mere report received from the Nazir of the Court, the learned trial Judge straightway proceeded to pass an order striking off the defence of the petitioner. The order is thus patently erroneous and not warranted by the provisions of S. 11(4) of the Bombay Rent Act. As a result of this order, the petitioner was naturally precluded from approaching the learned Judge for asking for leave to defend which he could have done only if the order striking off the defence had been passed pursuant to a direction given under the second part of S. 11(4) of the Bombay Rent Act. The decree passed on such an erroneous exercise of the jurisdiction by the learned trial Judge was liable to be set aside by the learned appellate Judge who, however, approached the case from a totally wrong point of view. If the learned Judge by framing the point for determination properly had asked himself the right question, namely, as to whether the trial Court was justified in striking off the defence of the petitioner, then I am sure he would have addressed himself to the proper interpretation of section 11(4) of the Bombay Rent Act. Then he would not have confirmed the decree for possession passed by the Court of first instance. Unfortunately the learned Assistant Judge framed the point for determination in such a vague and indeterminate manner that his attention was not brought to bear upon the relevant provision of law subject to which the Court of first instance had passed the impugned order. At this stage I am constrained in invite the attention of the courts below to the provisions of O. 41, R. 31 of the Civil P. C. This provision deals with the judgment of the Appeal Court and it says amongst other things that the judgment shall state the points for determination. When a requirement such as this is insisted upon by the procedural law of the land, one must try to understand the object and scope of this provision. Merely asking the question as to whether the judgment of the Court below is correct, legal or valid is hopelessly an inadequate method of meeting the requirement of this legal provision. I have with dismay noted several times in the judgments of the Appeal Courts below the points for determination being formulated in the following manner :

(1) Is the judgment of the Court below liable to be set aside?

(2) Is the decree of the Court below liable to be interfered with?

(3) Is the decree of the Court below valid?

(4) Is the decree of the Court below proper and legal?

These are some of the ways in which the Courts of first appeal have tended to formulate the points for determination.

17. This manner ignores that O. 41, R. 31(a) requires the appellate Court to state in its judgment the points that arise for determination after the arguments are advanced. Asking such vague questions as mentioned above will not lead to the pronouncement of a well considered and reasoned judgment. Imagine a Court of first appeal being confronted with the judgment where an issued is framed as to whether the suit of the plaintiff should be decreed. All concerned will be at sea if a suit is decided on an issue framed in that manner. As early as in Mhasu v. Davalat, (1905) 7 Bom LR 174, dealing with a similar provision in the earlier Civil Procedure Code, it has been pointed out that the object of the Legislature in making it incumbent on an appellate Court to raise points for determination was to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions of the latter. The points which must arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. It is a matter of almost textbook knowledge that the exact questions which arise in the appeal and require determination must be stated in the judgment. 'It is not sufficient to state the point to be determined in appeal whether or not the decision is consistent with the merits of the case.' The point so stated is hardly a point for determination as contemplated in Order 41 Rule 31 of the Code. The learned Judges of the Courts of first appeal should not approach the appeals merely from the point of speedily disposing of the same. The appeals must be also intelligently disposed of after taking note of the arguments advanced, the points arising from the arguments and other material and then deciding those points properly. A failure to understand the object of the provision such as O. 41, R. 31(a) of the Code has demonstrably resulted in the instant case in the failure of justice at the hands of the lower appellate Court.

18. In the result, this petition must succeed. The decree passed by the learned Civil Judge, Junior Division, Ulhasnagar in Regular Civil Suit No. 289 of 1978 and confirmed by the learned Assistant Judge of Thane in Civil Appeal No. 6 of 1980 is set aside. Civil Suit No. 289 of 1978 is restored to the file of the learned Civil Judge, Junior Division, Ulhasnagar, who will hear and dispose of the same from the stage at which he had passed the order under S. 11(4) of the Bombay Rent Act on 29th August 1979. If, however, by this time the petitioner-tenant has made the payment of rent, that shall be taken into consideration before the Court of first instance proceeds to pass any order regarding the payment of rent. No order as to costs of this petition.

19. Petition allowed.


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