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Sonajee Krishnajee Majumdar Vs. Nathu Yadav Patil - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 620 of 1958
Judge
Reported in(1959)61BOMLR156
AppellantSonajee Krishnajee Majumdar
RespondentNathu Yadav Patil
DispositionApplication rejected
Excerpt:
.....of his name in dying declaration would be of no help to accused. - he alleged before the extra aval karkun in his application under section 29 that the tenant had failed to pay rent for the years 1952-53, 1953-54 and 1954-55. the extra aval karkun came to the conclusion that the tenant had paid rent for the years 1952-53 and 1953-54, that even for the year 1954-55 the rent had been paid by the tenant, but it had been paid a little late, and held that so far as the year 1955-56 was concerned, the tenant had not paid the rent to the landlord. by the said order the extra aval karkun directed that on the tenant's failure to pay up the arrears of rent within 15 days from the date of that order, the possession of the land would have to be handed over by the tenant to the landlord. the..........east khandesh. he filed an application under section 29 of the tenancy act before the extra aval karkun of jalgaon for recovering possession of this land upon the ground that the tenant had committed three defaults in the payment of rent. he alleged before the extra aval karkun in his application under section 29 that the tenant had failed to pay rent for the years 1952-53, 1953-54 and 1954-55. the extra aval karkun came to the conclusion that the tenant had paid rent for the years 1952-53 and 1953-54, that even for the year 1954-55 the rent had been paid by the tenant, but it had been paid a little late, and held that so far as the year 1955-56 was concerned, the tenant had not paid the rent to the landlord. in the light of the above findings, the extra aval karkun on october 30,.....
Judgment:

Vyas, J.

1. This application is made by the petitioner Sonajee Krishnajee Mujumdar under Article 227 of the Constitution of India and herein the petitioner prays for setting aside the order of the Bombay Revenue Tribunal dated October 14, 1957, by which order the Tribunal confirmed the order of the Prant Officer dated May 31, 1957.

2. The petitioner is the landlord owning S. No. 509/1 of village Mamurabad, Taluka Jalgaon, District East Khandesh. He filed an application under Section 29 of the Tenancy Act before the Extra Aval Karkun of Jalgaon for recovering possession of this land upon the ground that the tenant had committed three defaults in the payment of rent. He alleged before the Extra Aval Karkun in his application under Section 29 that the tenant had failed to pay rent for the years 1952-53, 1953-54 and 1954-55. The Extra Aval Karkun came to the conclusion that the tenant had paid rent for the years 1952-53 and 1953-54, that even for the year 1954-55 the rent had been paid by the tenant, but it had been paid a little late, and held that so far as the year 1955-56 was concerned, the tenant had not paid the rent to the landlord. In the light of the above findings, the Extra Aval Karkun on October 30, 1956, passed a conditional order granting 15 days' time to the tenant,, within which to pay up the arrears of rent. By the said order the Extra Aval Karkun directed that on the tenant's failure to pay up the arrears of rent within 15 days from the date of that order, the possession of the land would have to be handed over by the tenant to the landlord. The tenant failed to pay the arrears of rent; so says the landlord. Therefore, on November 19, 1956, the Extra Aval Karkun made an order directing the tenant to hand over possession of S. No. 509/1 to the landlord. It may be noted that before the Extra Aval Karkun made the aforesaid order on November 19, 1956, the tenant appealed to the Prant Officer from the Extra Aval Karkun's order dated October 30, 1956. In that appeal, the Prant Officer passed an order on May 30, 1957. By that order the Prant Officer found that the Extra Aval Karkun's findings regarding payment of rent by the tenant for the years 1952-53 and 1953-54, regarding the late payment of rent by the tenant for the year 1954-55 and regarding the non-payment of rent by the tenant for the year 1955-56 were correct. By the said order of his, the Prant Officer granted 15 days' more time to the tenant to pay the arrears of rent, that is to say, the rent for the year 1955-56. The 15 days' time that was granted by the Prant Officer was granted from May 31, 1957, which was the date upon which the Prant Officer made his order. From that order of the Prant Officer the landlord went in revision before the Bombay Revenue Tribunal and the Tribunal rejected that application on October 14, 1957. It is from that order dated October 14, 1957, that the present application has been filed by the petitioner-landlord under Article 227 of the Constitution of India.

3. Now, the learned advocate Mr. Samant appearing for the petitioner-landlord has raised three points before us: (1) The Prant Officer had no jurisdiction to enlarge the time granted by the Extra Aval Karkun within which the tenant was called upon to pay up the arrears of rent. (2) As the tenant did not file an appeal from the Extra Aval Karkun's order dated November 19, 1956, by which order he (the tenant) was directed to hand over the possession of the land to the landlord, the Prant Officer had no jurisdiction to alter the said f order of the Extra Aval Karkun, dated November 19, 1956. (3) The discretion which the Prant Officer exercised in the matter of granting more time to the tenant to pay up the arrears of rent, being a judicial discretion, grounds should have been assigned before using that discretion. The Prant Officer did not assign any grounds for granting 15 days' time to the tenant with effect from May 31, 1957, to pay up the arrears of rent to the landlord.

4. Now, so far as the first point is concerned, it raises a question whether the Extra Aval Karkun himself has jurisdiction to extend the time, once granted by him to the tenant, to pay up the arrears of rent. It is not disputed that if the Extra Aval Karkun himself has got jurisdiction to enlarge the time originally granted by him, then of course the Prant Officer, being an appellate authority, has also got that jurisdiction. Now, the position in law seems to be quite clear. Section 29 of the Act provides that if a landlord makes an application before the Mamlatdar in a prescribed form to obtain possession of his land, the Mamlatdar shall hold an enquiry and thereafter he shall pass such order on the landlord's application as he deems fit. It is not disputed before us that even in a case where the tenant has been found guilty of having committed three defaults in the payment of rent, it is within the jurisdiction of the Mamlatdar to give him time to pay the arrears of rent to his landlord. The power which is conferred by the Legislature upon the Mamlatdar under Sub-section (3) of Section 29 is an unfettered power and this is clear from the words 'the Mamlatdar shall...pass such order thereon as he deems fit' 'Whether I the Mamlatdar should grant time or the extension of time to the tenant for payment of the arrears of rent to the landlord is a question which the Mamlatdar himself has to answer upon the facts and circumstances of each case, and in answering that question the Legislature has left it entirely to his discretion I to pass such orders as he considers appropriate. Mr. Samant contends that although the Mamlatdar has got an unfettered power to grant extension of time to the tenant even in a case where the tenant has committed three defaults in the payment of rent, he has not got a similar jurisdiction where a tenant has committed one default or two defaults. Now, this is a position which it is difficult to understand. If the intention of the Legislature in enacting the Act is, as it obviously is, that the Mamlatdar-should have unfettered jurisdiction in the matter of granting relief to the tenant, upon the tenant's paying up the arrears of rent, even if he has committed three defaults, it is not understood why the Legislature should have circumscribed that power of the Mamlatdar in a case where the tenant has committed only one default or two defaults in the payment of rent to the landlord. There is no doubt that under Section 29(5) the Mamlatdar would be competent to grant such time as he considers fit to the tenant to pay the arrears of rent. If the Mamlatdar can do so, we do not understand why, in a case where he initially granted time to the tenant within which to pay the arrears of rent, he could not subsequently extend the time; and grant further time to the tenant. In this connection, it is important to;'-bear in mind that Section 25(1) does not in terms say that if the tenant fails to, comply with the initial order made by the Mamlatdar regarding time within which he is called upon to pay the arrears of rent to the landlord, an order of ejectment shall be made by the Mamlatdar. The Legislature has in tenant stated while enacting Sub-section (1) of Section 25 that if the tenant pays up the arrears of rent to his landlord, the Mamlatdar shall, in lieu of making an order for ejectment, pass an order directing that the tenancy had not been terminated, and thereupon the tenant shall hold the land as if the tenancy had not been terminated. But the Legislature has not stated that if the tenant does not comply with the order regarding payment of arrears within a certain time the I Mamlatdar shall pass an order directing ejectment of the tenant. We have mo doubt that is the intention of the Legislature had been to circumscribe the jurisdiction of the Mamlatdlir and to provide' that the Mamlatdar shall not extend the time once granted by him, they would have made a provision to the effect that upon the tenant failing to comply with the order of the Mamlatdar regarding the payment of arrears within a certain time the Mamlatdar shall pass an order of ejectment. But there is no such provision in Section 25(1). Therefore, we have no doubt that the Mamlatdar has jurisdiction under the Act to enlarge the time originally granted by him under Section 25(1). If the Mamlatdar has got that jurisdiction, the Prant Officer as an appellate authority has also got it. That being so, we see no substance in the first point pressed before us by the learned advocate Mr. Samant for his client, the landlord.

5. So far as the second point is concerned, it also has no force. Mr. Samant contends that as the tenant did not appeal from the Extra Aval Karkun's order dated November 19, 1956, by which order he was called upon to hand over possession of the land to the landlord, the Prant Officer could not alter the said order of the Mamlatdar dated November 19, 1956. Now, if we are to accept Mr. Samant's contention, it would completely nullify the effect of the Prant Officer's order granting 15 days' time to the tenant with effect from May 31, 1957, to pay the arrears of rent to the landlord. If the arrears of rent are paid by the tenant, surely he must get relief against forfeiture; and if such relief is not to be granted to him simply because he did not appeal from the Extra Aval Karkun's order dated November 19, 1956, the Prant Officer's order would be as good as though it were not passed at all. It is to be remembered in this case that the order made by the Extra Aval Karkun on November 19, 1956, had no independent existence, that is to say, existence independent from his earlier order dated October 30, 1956. The two orders were inter-related and the latter order followed the former. That being so, if the former order dated October 30, 1956, passed by the Extra Aval Karkun was modified or reversed or varied, it would not avail the landlord to say that the latter order, namely, the order dated November 19, 1956, should be given effect to.

6. In this case, a principle which we might, with advantage, follow by way of analogy was laid down by the Calcutta High Court in Talelali v. Abdul Aziz ILR(1929) 57 Cal 1013. It was held by their Lordships of the Calcutta High Court that an appeal from a preliminary decree was not incompetent if the final decree was made before the appeal was presented and that in such a case it was not necessary for the party aggrieved by the preliminary decree to appeal against the final decree, although the final decree, apart from its being based on the preliminary decree, was otherwise correct. The same view was taken by the Bombay High Court in Baswant v. Kallappa (1937) 40 Bom. L.R. 164 By analogy it must follow that since the Extra Aval Karkun's order dated November 19, 1956, had no existence apart from his earlier order dated October 30, 1956, once the order dated October 30, 1956, was varied or modified, the subsequent order dated November 19, 1956, must stand rescinded in the light of the said variation or modification.

7. Apart from what has been stated above, it is important to bear in mind, and this is material in an application under Article 227 of the Constitution, that this point was not raised by the petitioner-landlord in his revision application before the Bombay Revenue Tribunal. This by itself would be a sufficient reason for us to reject this particular contention of his at this late stage. How-ever, upon merits also, as I have just stated, the contention has no substance.

8. The last point raised by Mr. Samant is also a point without substance. Mr. Samant contends that the Prant Officer in giving 15 days' time to the tenant with effect from May 31, 1957, within which to pay up the arrears of rent to the landlord, did not exercise his discretion judicially. In our view, the discretion was exercised for good reasons. This is a case in which the petitioner-landlord went to the Extra Aval Karkun with allegations which were found untrue. He had the hardihood to say before the Extra Aval Karkun in his application that the tenant had defaulted in the payment of rent for the years 1952-53 and 1953-54. This allegation was found without substance by the Extra Aval Karkun, who came to the conclusion that the rent was paid for the years 1952-53 and 1953-54 and that even for the year 1954-55 it was not true that the tenant had not paid the rent, but that the fact was that the payment was made a little late. Upon these circumstances, which in our view were properly appreciated by the Prant Officer, he decided quite rightly to give 15 days' time with effect from May 31, 1957, to the tenant within which to pay the arrears of rent.

9. The result, therefore, is that all the three contentions raised before us by Mr. Samant are without substance. The application must, therefore, fail and be rejected with costs.


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