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Harbhajansingh Dunasingh Sarary Vs. Suryakant Mulshanker Kaka - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 30 of 1982
Judge
Reported inAIR1982Guj296; (1983)1GLR182
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 11(4) and 29(3)
AppellantHarbhajansingh Dunasingh Sarary
RespondentSuryakant Mulshanker Kaka
Appellant Advocate N.R. Oza, Adv.
Respondent Advocate P.B. Majmudar, Adv.
Cases ReferredHarkisan Das v. Prabhavati Ben
Excerpt:
.....plus all taxes - order challenged by petitioner by filing revision application before assistant judge - assistant judge held revision application as not maintainable under section 29 (3) - revision application filed against judgment and order passed by assistant judge - in deciding whether revisional application under section 29 (3) lies before district court court to see whether appeal against order sought to be brought for revision lies under section 29 (1) - sub-clause (b) of proviso to section 29 (1) prohibits appeal from order on application for fixating standard rent or for determining permitted increase - assistant judge erred in dismissing revision application as not maintainable - matter remanded for disposal in accordance with law. - - it is with regard to that right of.....order1. this revision application is filed against the judgment and order passed by the learned assistant judge; baroda in civil revision application no. 41 of 1979. that was a revision application filed under section 29(3) of the bombay rents, hotel and lodging house rates control act, 1947 (here-__________________________________________________________________________________against judgment and orders passed by asst. j., baroda in civil revn, appln. no. 41 of 1979__________________________________________________________________________________after referred to as 'the act') by the original applicant-tenant against an order passed by the learned judge of the small cause court, baroda under section 11(4) of the act. it was dismissed on the ground that it was not maintainable under.....
Judgment:
ORDER

1. This revision application is filed against the judgment and order passed by the learned Assistant Judge; Baroda in Civil Revision Application No. 41 of 1979. That was a revision application filed under Section 29(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (here-

__________________________________________________________________________________

Against judgment and orders passed by Asst. J., Baroda in Civil Revn, Appln. No. 41 of 1979

__________________________________________________________________________________

after referred to as 'the Act') by the original applicant-tenant against an order passed by the learned Judge of the Small Cause Court, Baroda under Section 11(4) of the Act. It was dismissed on the ground that it was not maintainable under Section 29(3) of the Act.

2. The case of the petitioner-tenant is that rent of the suit premises is Rs. 1,200/- per month. He has also to

pay education cess at the rate of Rupees 200/- per month. This agreed rent was paid by him from March, 1976 to Nov., 1977. Even then the opponent-land lord raised a dispute regarding standard rent; and, therefore, he was required to file Rent Miscellaneous Application No. 172 of 1978 in the Small Cause Court at Baroda for fixation of standard rent. That was done on 6-5-1978. Alone with the said application, h2~ had also filed an application, Exh. 9 for fixing interim standard rent. The learned Judge of the Small Cause Court, by an order passed below Exh. 8, fixed interim standard rent at Rs.200/- per month plus Rs. 200/- as taxes. The landlord, on 16-1-1979, filed application Exh-, 1'6 for modifying the said order and for directing the pet6ioner to pay full amount of all taxes. The petitioner opposed that application. The learned trial Judge by an order dated 16-8-1979, modified the previous order passed by him and directed the petitioner-tenant to pay standard rent at the rate of Rs. 1.200/- per month plus all taxes and not at the rate of Rs 1,200/- plus Rupees 200/- only by way of taxes. The tenant was also directed to deposit an amount of Rs. 8,416.36 Rs. towards taxes which were required to be paid in respect of the suit premises. The order was

challenged by the tenant by filing the aforesaid revision arplication in the Court of the Assistant Judge. Baroda.

3. The learned Assistant Judge up held the contention of the landlord that the revision application was not maintainable under Section 29(3) of the Rent Act. The learned Judge was of the view that as an appeal against an order made under sub-sections (3) and (4) of Section 11 of the Act is barred by sub section (5) thereof and not by Section 29 and independently of it, sub-section (3) of Section 29 which provides that,

where no appeal lies under that section the District Court, may ....call for the case and pass such order with respect thereto as it thinks fit, will have no application. In coming to this conclusion, the learned Assistant Judge also relied upon the following observations made in Harkisan Das v. Prabhavati Ben, 14 Guj LR 438.

'The effect of this provision is that no order under sub-section (4) would be an appealable order. The order may, however, be subject to revision under Section 115 of the Civil P.C. and also subject to the scrutiny of the High Court under Article 227 of the Constitution of India if it is found in a given case that the order raises a question which could be dealt with or decided in exercise of such power. It may also be mentioned that Rr. 9, 9D and 13 of the Bombay Rents, Hotel and Lodging House Rates Rules, 1949, which deal with procedure in appeals under Section 29(1)(a) and (b) of the Act, provide that the appellate Court shall as far as may be and with necessary modification follow the practice and procedure prescribed for appeals from original decrees by the Civil Procedure Code. Section 100 of the Civil P. C. would therefore, be attracted and *it would be open to a tenant to set forth any error, defect or irregularity in any order passed by the trial Court under sub-section (4) when he prefers an appeal under Section 29(1)(a) or (b) of the Act, as the case may be'.

4. Mr. Oza, the learned advocate for the petitioner has challenged this view of the learned Assistant Judge as erroneous. He submitted that on this point there are direct decisions of this Court in Civil Revn. Appln. No. 581 of 1970, decided on 21-8-1970, Civil Revn, No. 470 of 1971, decided on 26-7-1971 and Civil Revn. Appln. No. 508 of 1972, decided on 10-10-1972 and the learned Assistant Judge should not have taken a contrary view.

5. The order which was challenged before the learned Assistant Judge was made under Section 11(4) of the Act. Mr. Oza, therefore, submitted that in view of Section 11(5), no appeal could have been filed against that order, and a revision application before the District Court was therefore, maintainable under Section 29(3) of the Act.

6. In C. ft. A. No. 581 of 1970 (decided by S. H. Sheth, J. on 21-8-1970), it is held that to link up sub-section (3) with proviso to sub-section (1) of Section 29 is to confine its operation to a very narrow ambit without any justification; and, therefore, except decrees and orders made appealable under subsection (1) all decrees and orders are revisable by the District Court under sub-section (3). Again the same view was taken by D. P. Desai, J. in Civil Revn- Application No. 470 of 1971. He observed as under:-

'When sub-section (3) says 'when no appeal lies under this section' of necessity it postulates the conferment of a right of appeal against certain decrees and orders and the exclusion thereof in certain cases. It is with regard to that right of appeal which is conferred by sub-section (1) that the aforesaid phrase is employed in sub-section (3) meaning thereby that in all cases where an appeal does not lie under sub-section (1) whether by virtue of a given order falling under the proviso to sub-section (1) or by virtue of specific prohibition like sub-section (5) of Section 11, the revisional jurisdiction of the District Court will come into operation. The purpose of sub-section (3) therefore is only to indicate that against all orders from which no appeal lies under sub-section (1) a revisional application can be filed in the District Court. Therefore, in order to decide whether a revisional application under sub-section (3) would lie to the District Court, the Court has to ask itself whether an appeal lies under subsection (1) against the order sought to be brought before it in revision. If the District Court comes to the conclusion that an appeal against such an order does not lie its powers of revision arise and it has not to inquire by what particular provision in the Act the appeal does not lie. The powers of revision unrestricted as they are in view of the terminology employed in sub-see. (3) arise irrespective of the question whether the appeal is prohibited by the proviso to sub-section (1) or by any other section in the Act, for instance Section 11(5) of the- Act'.

These two decisions were followed in Civil Revn. Appln. No. 508 of 1972 decided on 10-10-1972. B. K. Mehta, J., not only agreed with the view expressed by S. H. Sheth, J. and D, P. Desai, J., but also supported it by observing as follows :

'Apart from the above reasoning, the conclusion reached in above revisions appear to be correct in view of the proviso to clause (b) of sub-section (1) of Section 29 which provides that no appeal shall lie from an order made upon an application for fixing standard rent or for determining the permitted increases in respect of any premises. Subsections (3) and (4) of Section 11 in effect provide for fixation of interim standard rent and the reasonable amount. of rent to be deposited and to be paid to the tenant and also for striking off of the defence in case of failure On the part of tenant to so deposit. In my opinion, therefore, there is a further ground to hold that sub-clause (3) of the proviso to clause (b) of Section 29(1) prohibits an appeal from order on an application for fixing standard rent or for determining permitted increases. The amount of standard rent that is to be fixed under Section 29 may be either Provisional standard rent or final standard rent but nonetheless an order fixing standard rent and therefore, under sub-clause (3) of the said proviso the appeal is not competent. In that view of the matter, therefore, also sub-section (3) is attracted and the revision is competent in such cases'.

7. In Harkisan's case (AIR 1973, Guj 240) (supra) referred to by the learned Assistant Judge such a question had not arisen. It is not held therein that no revision application is maintainable under Section 29(3) of the Act against an order passed under Section 11(4) The observations relied upon by the learned Assistant Judge do not justify such an inference. The learned Assistant Judge has not correctly appreciated the effect of these observations and erroneously dismissed the revision application as not maintainable. For all these reasons, the judgment and order passed by him will have to be set aside.

8. In the result, this revision application is allowed. The judgment and order passed by the learned Assistant Judge are set aside; and the matter is remanded to him for disposal in accordance with law. Rule is made absolute with no order as to costs. The learned Assistant Judge is directed dispose of the matter as early as possible and preferably within three months from the date of receipt of the record by him. Till final order is passed by the Court below, the order directing the petitioner to deposit Rs. 8,416.36 is stayed.

9. Revision allowed.


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