S.H. Sheth, J.
1. This Revision Application raises an important question as to the procedure to be followed by the Court of Small Causes at Ahmedabad while issuing distress warrant under Chapter VIII of the Presidency Small Cause Courts Act, 1882.
2. The facts of the case are as under, Landlord Mohamed Ikbal who purchased the property on 10th April 1970 from its earlier owner Gurivantiben, widow of Shantilal Kalidas, and others applied for issue of a distress warrant against the tenant Balkrishna for recovering the rent due for a period of 10 months and 20 days after Balkrishna's tenancy was attorned by Gunvantiben and others in favour of Mohamed Ikbals The Registrar of the Court of Small Causes at Ahmedabad issued the distress warrant. When the bailiff went to levy it the tenant requested him to grant him some time in order to enable him to collect the monies and to deposit in the Court. The bailiff gave him a few days time. Next day the tenant made an application to the Registrar of the Court of Small causes in which he alleged that the distress which his landlord Mohamed Ikbal had obtained against him was excessive and illegal. The Registrar held an inquiry and found that Mohamed Ikbal ought to have applied for distress warrant to recover only a sum of Rs. 180/- and not Rs. 597-33 for which it had been issued. He, therefore, made an order on 26th June 1971 by which he directed tenant Balkrishna to deposit a sum of Rs. 180/- representing the rent for a period of 10 months within two days in the Court. He further ordered that after the said amount was deposited by tenant Balkrishna landlord Mohamed Ikbal would be entitled to withdraw it whereupon the distress warrant would stand 'disposed of.' Against that order the landlord made an application for a new trial under S. 38 of the Act. It was heard by a Bench of two judges who recorded the finding that the Registrar was in error in modifying the distress warrant and reducing the amount recoverable there under to Rs. 180. They, therefore, allowed the application and directed the tenant to deposit a sum of Rs. 597/- by 30th August 1973 in the Court. They further directed that the tenant was at liberty to make an application for fixing standard rent of the premises in his possession.
3. It is that order made by the Bench of two judges of the Court of Small Causes which is challenged in this Revision Application.
4. Mr. Shah who appears for the tenant has firstly contended that the distress warrant 10 months not for an 20 days was a distress warrant not for an amount which had become due. According to him, rent becomes due and payable at the end of the month and, therefore, the landlord could not have included rent for a period of 20 days in the amount which he sought to recover by levying the distress. In principle the argument which Mr. Shah has raised is a correct argument. Distress can be levied only for recovering rent which has become due. Rent becomes due and payable, where there is a monthly tenancy, at the end of a particular month. No distress therefore can be levied to recover rent for a part of the month because rent for a part of the month does not become due. If a landlord applies for issue of a distress warrant to recover rent for a period which includes a part of the month, in case of a monthly tenancy the amount which he seeks to recover cannot be said to be due. If an application for issue of a distress warrant to recover rent for 6 months and 10 days is made, then though rent may be due for a period of six months and may be recoverable by levying distress, it is not due for a period of 6 months and 10 days in case of a monthly tenancy and, therefore, it cannot be recovered by levying distress. In our opinion, inclusion of an amount which has not become due as and by way of rent, as for example, for a part of the month, in case of a monthly tenancy, in the amount which is otherwise recoverable vitiates the entire distress warrant and it must be set aside. In other words, no distress warrant can be issued for recovery of rent a part of which has become due and payable and a part of which has not become due and payable as stated above. Such a distress warrant is illegal and therefore if issued, must be set aside. In the instant case however no such difficulty arises because the landlord purchased the property on 10th April 1970. He, therefore, made an application for recovery of rent from 10-4-1970 when he became the landlord until 28th February 1971 when the month of February ended. Since the landlord Mohmed Ikbal become entitled to recovery of rent only from 10th April 1970 and since he was not entitled to recover it with effect from 1st April 1970, he could levy a distress warrant for recovery of rent from 10th April 1970 to 30th April.1970, along with subsequent rent. It is this exception to the rule which negatives the otherwise strong challenge made by Mr. Shah to the legality of the distress warrant. The first contention which Mr. Shah has raised, therefore, fails and is rejected.
5. The second contention which he has raised is that the distress warrant was excessive and therefore illegal. The record of the case shows that prior to 10th April 1970 when Mohamed Ikbal became the landlord the rent which tenant Balkrishna was liable to pay to his landlord was Rs. 18/- per month. Mohamed lkbal made an application to issue a distress warrant to recover rent at the rate of Rs.56/- per month. Mohamed Ikbal tried to show that the letter of attornment which his predecessor in title had served upon tenant Balkrishna had stated that rent according to the assessment made by the Municipality would be Rs. 56/- per month. In our opinion if there is a pending dispute between a, landlord and a tenant in regard to the rent' which the tenant is liable to pay to the landlord, no distress warrant can be issued and levied for recovery of rent. Secondly, it can be levied only to recover such rent as was due and payable on the basis of the rent paid by the tenant to the. landlord and accepted by the landlord in respect of the. month preceding the period for which the landlord makes an application for issue of distress warrant to recover it. If a landlord makes an application for levy of distress upon the movables of his tenant to recover rent at a rate different from one which is agreed between them or at a rate different from one at which the tenant paid to the landlord for the month preceding the period of issue of distress warrant, no distress warrant can be issued. Such a distress warrant would be illegal. Where a tenant contends that the distress warrant has been issued for an excessive amount, the Court in distress warrant proceedings has no jurisdiction to modify the distress warrant and reduce the amount. If the Court finds that the distress was levied for an excessive amount, the only course which is open to the Court is to discharge the distress warrant in its entirely on the ground of its illegality under S. 60 of the Act. Issue of a distress warrant is a drastic and summary remedy. It is not a suit. It is issued at the instance of a landlord without serving any notice upon the tenant. It is nothing but a demand for rent made by a landlord upon his tenant through the Court of law. If the landlord wants the Court to enforce such a demand without calling upon the tenant to show cause why it should not be enforced, it must be in respect of an agreed amount or in respect of the standard rent fixed or in respect of the amount which is calculated on the basis of the rent paid by the tenant to his landlord for the month preceding the period of rent in respect of which application for distress warrant has been made. In the instant case, the Registrar of the Court of Small Causes who tried the application made by the tenant did not realize that he had no jurisdiction to do what he did. Secondly, when the matter went to the Bench under S. 38 of the Act the learned judges also were not aware of this position in law. It appears to us that they were under the impression that an application for a distress warrant is to be tried and decided on its merits as if it is a suit and that the distress warrant issued for a larger amount can be sustained for a smaller amount and that the amount of the distress warrant reduced by the Registrar can be enhanced by them to its original figure. Chapter VIII of the Presidency Small Cause Court Act, 1882 which deals with distresses does not permit the Small cause Court to do any of these things. S. 60 Provides to the tenant two remedies. He can apply for suspension of the distress warrant or for its discharge. In the instant case, we are not concerned with the suspension of the distress warrant. A distress warrant inter alia can be discharged if it is for an amount which is not due or if it is for an amount which is excessive. In the instant case where the tenant alleges that the amount sought to be recovered by levying the distress is not due or is excessive the only course open to the Court is to discharge the distress warrant on the ground of its illegality. It is not open to it to inquire in to the merits of the case and to determine what amount is recoverable under the distress warrant in case the Court comes to the conclusion that the amount sought to be recovered under it is not due or is excessive. The determination of the correct amount of rent payable by a tenant to his landlord can be done only in a suit and not in distress warrant proceedings firstly because distress warrant proceedings are not a suit where defences of a tenant can be tried and secondly because it is a summary remedy of a drastic nature to which resort can be allowed to the landlord in case of arrears of rent in respect of which there is no pending dispute or in respect of which there was an agreement between the parties or an order of the Court prior to the levy of distress. The Registrar as well as the Bench of the Court of Small Causes at Ahmedabad were, therefore, in error in doing what they did. The only course which was, open to them was to discharge the distress warrant.
6. The third contention which has bee& raised is that the Registrar has no jurisdiction to modify the distress warrant or to discharge it. In our opinion, the Registrar has no jurisdiction to modify the distress warrant because the modification of a distress warrant presupposes a contest between the parties and determination by him. He has no jurisdiction to decide the contest between the parties. Rule 8 (c) of the Ahmedabad Small Cause Court Rules, 1961 empowers the Registrar to hear and dispose of applications for issue of distress warrants made under S. 53 of the Act. No section empowers him to decide the contest between the parties with a view to modifying the distress warrant. So far as discharge of an illegal distress warrant is concerned it is governed by S. 60 of the Act. Now, S. 53 deals with an application for distress warrant and S. 54 deals with issue of distress warrant. Both these sections empower the judge of a Small Cause Court or its Registrar to exercise powers there under. It is in that context that R. 8 (c) of the Ahmedabad Small Cause Court Rules, 1961 has been made. When Rule 8 (c) provides that 'the Registrar shall have power to hear and dispose of ......applications for issue of distress warrants' it only means that the Registrar can exercise power under S. 53 or S. 54 of the Act. It does not enable him to exercise power under S. 60 which requires an application to be made only to a judge of the Court of Small Causes. In other words, whereas Ss. 53 and 54 confer power both on a judge as well as the Registrar, S. 60 confers power only upon the judge, Therefore, if an application for discharge of a distress war rant which the tenant alleges to be illegal or unlawful is to be made, it must be made to a judge. That it should be made to a judge and not to the Registrar is otherwise also in conformity with the principles governing administration of justice by the Court of Small Causes which do not contemplate the decision or adjudication of a dispute or a defended action by the Registrar except where he has been expressly authorised to decide such actions. In the instant case, therefore, when the tenant made an application for discharging the distress warrant, it ought to have been tried and decided by a judge and not by the Registrar. The Registrar was, therefore, in error in assuming the jurisdiction to decide it. The two learned Judges of the Court of Small Causes who heard the new trial application against the it had ceased to be a member of the As order of the Registrar were also not aware of this position. They proceeded on the assumption that the Registrar had the initial jurisdiction to decide the contested distress warrant and proceeded further to decide the new trial application on merits. They could not have done it. In this view of the matter, the distress warrant proceedings would be required to be remanded to a judge of the Court of Small Causes for a fresh decision. However, in the instant case, we do not propose to do so because the protraction of the litigation by remand is not going to serve any purpose. We have come to the conclusion that the distress which Mohamed lkbal levied on tenant Balkrishna was excessive and the only order therefore which we can make is to allow this Revision Application and to set aside the distress warrant. In taking this view we are fortified by the decision of Mr. justice B. J. Wadia in Nasiruddin Karim Mohamed v. Umerji Adam and Co., 43 Bom LR 546 : (AIR J941 Bom 286).
7. In the result, we allow this Revision Application, set aside the orders made by the Courts below, set aside the distress warrant issued by the Court of Small Causes and dismiss the application for distress warrant. The amount if any deposited by the tenant in the Court in pursuance of this distress warrant shall be refunded to him. Rule is made absolute with no order as to costs.
8. Revision allowed.