1. This revision application raises an interesting question of law, becoming more interesting by the peculiar facts of this case. This revision application has been brought to this Court under S. 29(2) of the Bombay Rent Act (the 'Act', for short).
2. In order to comprehend fully the controversy that has been raised in this revision application, the facts require to be noted fully The opponent herein is the plaintiff of a rent Suit No. 2414 of 1975 which was initially registered as the Regular Civil Suit No. 904 of 1974 in the Court of the Civil Judge (JD), Baroda but it came to be transferred to the Small Causes Court at Baroda itself on that Court being established in the year 1975. The landlord had filed the said suit for possession of the rented premises situated at Baroda. The landlord's case in the plaint was that the defendant No. 1, Usha Ramchandra Kulkarni, the wife of the defendant No. 2, Ramchandra Nineji Kulkarni, was his tenant, that she was in arrears of rent right from 1st of April, 1972, that despite the demand notice under Section 12(2) of the Act, she had not paid any rent and that the defendant No. 2, her husband, claimed to be the tenant and had even filed an application for fixation of standard rent and because of this dispute raised by the defendant No. 2, he impleaded him as a party to the suit in order to avoid the plea of the suit being bad at law for want of a necessary or proper party though the plaintiff reiterated that he struck to his case that the defendant No. 1 was his tenant. It is to be noted that in the application for fixation of standard rent filed by the defendant No. 2, an interim rent at the rate of Rs. 18/- per month was fixed though the contractual rent was stated to be Rs. 20/- per month. The defendant-husband had also deposited some amount at the rate of Rs. 18/- per month on the record of the said misc. application filed under Section 11 of the Act. In response to the suit both the defendants had filed a joint written statement at Exhibit 7 contending that the defendant No. 1 was not the tenant but the defendant No. 2 was the tenant, that there was a dispute about standard rent and so the defendant No. 2 had filed an application No. 2 of 1978 wherein the defendant No. 2 had deposited the rent and that the plaintiff's suit was liable to be dismissed.
3. Soon after the written statement was filed by the defendants, the opponent-landlord filed an application Exhibit 8 on 10-11-1976 setting out how the defendant No. I was in arrears of Rs. 1,700.21. In that application Exhibit 8, he ultimately prayed as under.
'Please order the defendant No. 1 to deposit with the Court the amount of light charges, rent and taxes. As the defendant does not pay tax nor does pay the increase in taxes and consumes more electricity, an order should be passed directing deposit of that amount.' (Stress by me.)
To this application the reply was filed by the defendant No. 2 at Exhibit 9 contending inter alia that the defendant was not liable to pay any tax and that the application should be dismissed with costs. The learned Judge then on 12-8-1977 passed the order part of which is reproduced below.
'Para 3. Whatever, if any, is deposited in Court by the tenant towards the above claim on proof, will be given credit.
Para 4. Again, on proof of all these amounts, some will be ultimately passed in favour of the plaintiff but this-is a prima facie order u/s. 11 (4) of the Bombay Rent Act to the tenant.
Para 5. The tenant to deposit Rupees 1,700-21 ps. by or before 26-8-1977. He shall also deposit further rent regularly. If he fails to deposit the order under Section 11 will be passed.... ...'
Curiously enough, the order refers to a tenant but does not refer to the defendant No. 1 or the defendant No. 2 specifically. Before the learned Judge there was a direct controversy as to who the tenant is. Even in his application Exhibit 8, the landlord insisted that the defendant No. 1 was the tenant. The prayer was also to issue direction to the tenant and the learned Judge passed the order calling upon the tenant to deposit the amount. Who is to be understood to have been directed the defendant No.1 or the defendant No. 2, or
Both? Other things being equal, it is safe to assume that the tenant against whom the landlord sought the order must have been intended to deposit the amount because ordinarily there cannot be any order against the defendant No. 2 whom the landlord did not acknowledge as his tenant. Now the learned Judge in para 5 of his order quoted above has used the pronoun 'he' but this is to be interpreted to mean a loose expression because according to the landlord, the defendant No. 1 was the tenant. The application Exhibit 8 was filed against the defendant No. 1 and under S. 11(4) of the Act an order to deposit the amount could be passed only against the tenant and not against any other person. So I interpret that the trial Court wanted to bind the defendant No. 1 alone by passing the said order.
4. The date 26-8-1977 drew up and the vigilant landlord immediately filed the application Exhibit 16. The said application inter alia reads as follows :
'The defendants have not complied with the order of the Hon'ble Court. Hence it is requested that the defendants may be stopped and struck off and any other or further order as may be deemed necessary may be passed.'
Below that the learned Judge passed the following order on 14-11-1977:
'The defendant (singular) has not complied with the order dated 12-8-1977 on Exhibit 8. He has not deposited any amount in C. A. Hence the defendant is prevented from defending or appearing in the suit under S. 11(4) of the Bombay Rent Act.'
It is to be remembered that this application Exhibit 16 was opposed by both the defendants by their joint reply at Exhibit 18 dated 19-10-1977. There also it was contended by them, obviously more by the defendant No.,2 that as the landlord did not accept the defendant No. 2 as his tenant, the order to deposit rent could not be passed against him. The application then proceeded to state further that despite that and without prejudice to that contention they had deposited the amount in the Court. The learned Judge had thereafter passed on 14-11-1977 the above mentioned order. After the said order had come to-be passed, the defendants' advocate had given the application Exhibit 21 on 16-11-1977 praying that they should be given time because they wanted to file a revision application against the Court's order dated 14-11-1977 below Exhibit 16 but that application was rejected by the learned judge on 16-11-1977. The plaintiff was examined on the very day and then he closed his evidence and the learned Judge delivered the judgment on the following day decreeing the plaintiff's suit. The operative part of the order is also required to be reproduced.
'Both the defendants do hand over peaceful and vacant possession of the suit premises to the plaintiff within two months from today. The defendant No. 1 do pay the plaintiff Rs. 874-24 p. for arrears of rent ...... The plaintiff is also entitled to recover mesne profits of the suit premises from the defendant No. 1 for a period from the date of the suit ...........'
In the course of the judgment, the learned Judge referred to the plaintiff's evidence at Exhibit 24 speaking about the defendant No. 1 being the tenant and the defendant No. 2 residing with her as her husband and he ultimately held that the defendant No. 1 was the tenant and not the defendant No. 2. Simultaneously he passed his order in the defendant No. 2's Civil Misc. Appln. No. 503 of 1975 because in his view he was not the tenant and he had no right to file that civil misc. application.
5. Mr. P. V. Hathi, the learned advocate appearing for the applicants, urged that the learned Judge of the trial Court had confused himself at all stages and had passed cryptic orders making the confusion worse confounded. In my view, Mr. Hathi's charge is very well founded. It is to be recalled here again to our mind that when the first application was filed by the landlord under Section 11(4) of the Act, he had clearly sought the order only against the defendant No. 1. The order passed by the learned trial Judge below that application on 12-8-1977 shows that the learned trial Judge in all probability passed the order against one of the two defendants, namely, the tenant, though he left to be conjectured as to whom he considered to be the tenant and who was sought to be found by his order to deposit the amounts. In the operative part para 5 quoted above, he first mentions that the 'tenant to deposit Rs. 1,700-21 by or before 26-9-1977'. It would ordinarily mean that he had the defendant No. 1 in his mind. In the next sentence he uses 'he' speaking of the masculine gender and this was suggested to be referring to the defendant No. 2. Even if it be referring to the defendant No. 2, then the defendant No. 1 was not to be bound by it. But taking the totality of the circumstances, it is reasonable to believe that the learned Judge wanted to bind only that party, namely, the defendant No. 1, who as per the say of the plaintiff and as per the application Exhibit 8, was the only person recognised by the landlord as the tenant and the landlord wanted an order to deposit the amount under S. 11(4) of the Act only against this tenant, i.e., the defendant No. 1.
6. Taking advantage of the loose expression of the learned trial Judge, the landlord then filed an application Exhibit 16 and requested that the defence of both the defendants be stopped and struck off. At this stage also, the learned Judge continued his loose expression in his order which starts with the statement: 'The defendant has not complied with the order dated 12-8-19-77 on Exhibit 8. He hits not deposited any amount in C. A. Therefore, the defendant is prevented from defending or appearing in the suit under S. 11(4) of the Bombay Rent Act.' To this application the reply was filed by the husband, the defendant No. 2 and it was brought specifically to the notice of the learned Judge that when the plaintiff did not accept the defendant No. 2 as his tenant, there could not be any question of his being ordered to pay the amount. The learned Judge ignored totally this objection and therefore the order passed by him under Section 11(4) of the Act which is again a cryptic order could be said to be bad at law.
7. Mr. S. B. Vakil, the learned advocate appearing for the opponent-landlord, in this connection, however, wanted me to hold that both the orders passed by the learned Judge should be liberally construed by me and it should be understood that both the defendants were ordered by the learned Judge to pay up the amounts and the defences of both of them were struck off. It is difficult to agree with this submission for the reasons already set out by me above. Mr. Vakil time and again highlighted the say of the defendant No. 2 in the suit that it was he who was the tenant and in his submission, therefore, it was not open to the defendant No. 2 to say that he was not sought to be hit by the orders in question. It is to be remembered that orders under the provisions of Section 11(4) of the Act are the special provisions from which serious consequences flow to the great detriment of the persons sought to be hit and so from the very nature of things strict interpretation of such orders is required to be had. Though the landlord was persisting in asserting his stand that the defendant No. 2 was not his tenant, it can be said that the defendant No. 2 could be a person who can be hit by an order under Section 11(4) of the Act. The very scheme of Section 11(4) of the Act pre-supposes as a condition precedent that it is to be provided as a weapon against, recalcitrant and belligerent tenant who wants to abuse the Court's prolonged process to his advantage and to the material disadvantage of the landlord. It is, therefore, inevitable for the Court prima facie to hold that the person against whom the stringent provisions of S. 11(4) of the Act are to be applied is shown at least prima facie a tenant liable to pay rent. If there is any controversy in that regard, the Court must first resolve it and then pass the order in question. Unless this decision either on taking up the issue about tenancy as the preliminary issue or as the tentative decision pending final adjudication is reached, the order under Section 11(4) of the Act cannot be passed. In this connection the view of this Court is expressed by R. C. Mankad, J., in the case of Vinodbhai Chabildas v. Manilal Soni in the C. R. A. 1331 of 1978 decided on 21st November, 1978. Mr. Vakil urges that the ratio laid down by the learned single Judge is open to serious doubt and therefore I must refer the question for reconsideration by the Division Bench. I do not agree with him. Mr. Vakil's argument proceeded on the basis of Order 14 of the Civil Procedure Code which as a matter of general policy lays down that all issues must be tried together except when the issues of law going to the root of the matter are arising in a suit where it is the Court's discretion to bear those issues first. What has been provided for in Order 14 is a matter of general proposition of procedural law and cannot be invoked in a special situation like the one created by S. 11(4) of the Act. In a case arising under Section 12(3)(b) of the Rent Act where there is a dispute about standard rent, this High Court has laid down years ago that the Court is bound to decide the question of standard rent first in order to decide whether condition of S. 12(3)(b) of the Act about payment of arrears is met with or not. As the issue about fixing of standard rent is to be taken up first in a suit falling under Section 12(3)(b) of the Act despite the general procedural guidelines laid down by the Legislature in 0. 14 of the Civil P. C. similar would be the case in respect of the issue about tenancy rights to be required to be decided under S. 11(4) of the Act. So the basis sought for by Mr. Vakil for buttressing his argument is not available to the landlord.
8. Mr. Vakil then submitted alternatively that where there is a conflicting claim of tenancy as is the matter before us in this case, it is not possible for the Court to decide as to who out of the two is a possible tenant. I see no difficulty in the Courts reaching a tentative finding on prima facie evidence or, reaching a final finding treating this issue as the first issue to be tried in a special situation like the one arising under Section 11(4) of the Act. Mr. Vakil then urged that if such a prima facie finding is set at naught in the Appellate Court, a queer situation would arise. Assuming that the Appellate Court comes to decide otherwise, but as far as the order striking out the defence in respect of one of the two such claimants is concerned, the matter would stand clinched because that party would not be before the Court because of the defence having been struck off and his having been precluded from appearing at the trial. Even if such a possible contingency is likely to arise, it is to be suffered as the inevitable concomitant of this technical procedural law provided for in our country. Such a possible hardship which is remote in its character cannot be a ground for rejecting the otherwise sound proposition of law that before a stringent order under S. 11(4) of the Act can be passed, the Court must reach a tentative conclusion based on prima facie evidence as to whether the person sought to be hit by the order under S. 11(4) of the Act appears, to be a tenant or not.
9. Mr. Vakil, however, urged that in this particular case the two rival claimants are not strangers but they are the wife and husband respectively who have made a common cause by filing a joint reply, by engaging a common advocate and by litigating this cause jointly, and my allowing their revision application at this stage would be putting a sort of premium on this show of cockfight. To me it appears that the dispute as raised by the husband, the defendant No. 2, is not a mere camouflage but it appears to be a seriously put forward plea of his. Whether the husband ultimately succeeds in making it good or not is a different matter altogether. The fact remains particularly in the light of the situation as is available in the Indian society that husband in all probabilities would hire the premises and the wife would stay with the husband as a member of his family. Converse is the case here as pleaded by the landlord. But I refer to this possibility of generality only for negativing Mr. Vakil's submission that the plea of the tenancy of the husband has been put forth as a sheet hoax to save the common shelter of theirs.
10. Mr. Vakil wanted me not to exercise my discretionary powers under S. 29(2) of the Act in the facts and circumstances of the case. If the discretion is to be exercised in one way or the other, I would say that this is peremptorily a fit case for the Court to exercise the Court's discretion in favour of the defendants rather than in favour of the landlord. As the Supreme Court has recently observed in the case of Miss Santosh Mehta v. Om Parkash, reported in AIR 1980 SC 1664, striking out defence of a tenant is a harsh extreme and having regard to the benign scheme of the legislation this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent. The Supreme Court further observes that that is why a discretion is vested, not a mandate imposed and that striking out a party's defence is an exceptional step, not a routine visitation of a punitive extreme following upon a mere failure to pay rent. As far as the facts of the present case go, the husband had filed his application for fixation of standard rent before the suit had come to be filed. He had got an interim rent also fixed; he had deposited Rs. 900/- by the time the orders in question had come to be passed by the learned Judge and within a short span thereafter he had deposited the further sum of Rs. 600/-. At this stage Mr. Hathi for the defendants has shown to me that by this time, almost at every stage, the amount claimed by the landlord was paid almost in defence. Mr. Hathi went to the extent of asserting that the rent that could be worked out for a period fill at least 1985 also stood credited well in advance. All this is referred to not for the purpose of binding the future decision of the trial Court but only with a view to show that there is nothing like ex facie injured innocence on the part of the landlord and rank incalcitrance on the part of the defendants.
11. Mr. Vakil alternatively submitted that at any rate the order against the defendant No. 1 striking out her defence should stand. I would have readily agreed to his submission, had the order of the learned trial Judge been not cryptic as elaborated by me above. The learned Judge was not sure of who the tenant was when he passed the impugned order below Exhibit 8. He was not sure as to whose defence he was out to strike and ultimately he struck the defence of both the parties and proceeded to deliver an almost ex parte judgment. Unfortunately the learned Appellate Judge could not see through all this with the result that grave prejudice has been occasioned to these defendants.
12. Mr. Vakil in this connection had urged that if the husband claimed to be the tenant he should have obeyed the order because he had no other defence of his and that if the husband was not the tenant, he was there only through his wife and therefore was bound by the decree passed against the wife. All these arguments are only hypothetical because they proceed on the assumption that a valid ex parte order had come to be passed against both of them. As I have already observed above, the learned Judge was not sure of what he was doing when he passed an order below Ext. 8 and ultimately out of his annoyance with the defendants, lie dismissed the defence of both of them lock, stock and barrel.
13. Mr. Vakil had lastly urged that 6a point as was argued by Mr. Hathi for the defendants before me was not placed before the learned Appellate Judge and this Count should not allow a new point to be raised. A question of law, pure and simple, can be raised even at any stage including the stage of hearing of a special leave petition under Art. 136 of the Constitution of India. A revision under S. 29(2) of the Act is on a plateau of a second appeal under the Civil P. C. and the Supreme Court has well laid down as a proposition of law that a pure question of law like the validity of a notice can be raised for the first time, even in the second appeal. All that has been pointed out by Mr. Hathi for the defendants is a pure question of law emanating from the facts either admitted or facts which cannot be controverted. It is too late in the day for the landlord to save the decree in this fashion.
14. The result is that the revision application is allowed by setting aside the judgments and decrees of both the Courts below. Along with these, the orders below Exts. 8 and 16 in the suit also shall stand set at naught as my discussion above shows. The suit shall stand remanded to the Court of Small Causes, Baroda where the concerned Judge will deal with it in accordance with law. Rule is accordingly made absolute with no order as to costs.
15. Revision allowed.