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Chandrakant Himatlal and ors. Vs. Dr. Harjivandas K. Karelia - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1970)11GLR798
AppellantChandrakant Himatlal and ors.
RespondentDr. Harjivandas K. Karelia
Cases ReferredPromoda Nath v. Harishee Bagdhi
Excerpt:
- - 1. this civil revision application (869/68) raises an interesting question relating to the procedure to be followed in recording evidence by the small causes court, ahmedabad, functioning as a court under the bombay rents, hotel and lodging house rates control act, 1947, (hereinafter referred to as the rent act). the question in brief is whether in appealable cases the court should record the oral evidence verbatim or whether a memorandum in english of the substance of the evidence will satisfy the requirements of law. as for trial the court constituted under section 28 has to follow the procedure prescribed by the rules framed under section 31 of the rent act and the rule making authority may well think it proper to prescribe a limit which has no relation to the pecuniary.....akbar s. sarela, j.1. this civil revision application (869/68) raises an interesting question relating to the procedure to be followed in recording evidence by the small causes court, ahmedabad, functioning as a court under the bombay rents, hotel and lodging house rates control act, 1947, (hereinafter referred to as the rent act). the question in brief is whether in appealable cases the court should record the oral evidence verbatim or whether a memorandum in english of the substance of the evidence will satisfy the requirements of law.2. the revision application concerns a suit for ejectment filed by the petitioners as landlords against opponent who was admittedly a tenant in the suit premises situated at ahmedabad. the suit (no. 2726 of 1961) was filed in the court of small causes at.....
Judgment:

Akbar S. Sarela, J.

1. This civil revision application (869/68) raises an interesting question relating to the procedure to be followed in recording evidence by the Small Causes Court, Ahmedabad, functioning as a Court under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereinafter referred to as the Rent Act). The question in brief is whether in appealable cases the Court should record the oral evidence verbatim or whether a memorandum in English of the substance of the evidence will satisfy the requirements of law.

2. The revision application concerns a suit for ejectment filed by the petitioners as landlords against opponent who was admittedly a tenant in the suit premises situated at Ahmedabad. The suit (No. 2726 of 1961) was filed in the Court of Small Causes at Ahmedabad which had under Section 28 of the Rent Act exclusive jurisdiction to entertain and try it. The suit was valued at Rs. 2375/- being Rs. 1320/- for possession (monthly rent of the premises being Rs. 110/-) and Rs. 1055/- for arrears of rent upto the date of the suit. Possession was sought on several grounds some of which were accepted by the trial Court and a decree for eviction was passed on 30-4-65. The opponent went in appeal to the Appellate Bench of the Court of Small Causes at Ahmedabad (hereinafter referred to as the Appellate Bench) to which an appeal lay under Section 29(1)(a) of the Rent Act. Before the Appellate Bench a point of procedure was raised for the first time on behalf of the appellant-tenant. It appears that the trial Court had recorded oral evidence in English in the form of memorandum of the substance of the evidence. The point of procedure in the appeal was that under the relevant provisions of law the recording of the evidence should have been full and in the regional language of the Court which was Gujarati with a memorandum in English. The contention was that the trial Court had followed the procedure prescribed by Rule 5 of the Bombay Rents, Hotel and Lodging House Rates Control Rules, 1948 (hereinafter referred to as the Rent Rules) whereas it should have followed the procedure Prescribed by Rule 8 as the subject matter of the suit was over Rs. 2,000/-. That contention was heard as a preliminary point and accepted by the said Appellate Bench. Accordingly, the decree was set aside and the matter remanded. The plaintiffs-landlords have come to this Court in revision against that order of remand.

3. In this revision application the parties to C.R.A. No. 1194/68 which is pending before this Court have intervened as a similar question arises in that application also. There the suit was for ejectment (No. 1837 of 1962) against two defendants, the case being that the original defendant No. 1 was their tenant and the original defendant No. 2 was residing with original defendant No. 1 and was claiming to be a sub-tenant. Possession was claimed on the ground of bona fide requirement. The original defen dant No. 1 did not contest. Defendant No. 2 who contested claimed to be a direct tenant of the plaintiffs since 1958. The trial Court rejected the plea of defendant No. 2 (petitioner in the revision application) and accepted the case of the opponents-landlords and decreed the eviction on 3-2-66. The defendant No. 2 went in appeal to the Appellate Bench of the Small Causes Court and one of the contentions urged was that the trial Court erred in following the procedure prescribed in Rule 5 of the Rent Rules instead of Rule 8. That contention was negatived and it was held that the procedure under Rule 5 was the proper procedure to be followed in a suit the value of the subject matter of which did not exceed Rs. 2,000/-. The other contentions urged were also negatived and the appeal was accordingly dismissed. Against that decision this revision application was filed.

4. The jurisdiction of the Ahmedabad Small Causes Court to try suits under the Rent Act arises by reason of Section 28 of the Rent Act. Under that section the Small Causes Court at Ahmedabad acquired exclusive jurisdiction in respect of suits and proceedings of the nature specified in that section. Section 31 provides that in trying and hearing such suits and proceedings, the Court is to follow the procedure prescribed. The procedure is prescribed by the rules made by the State Government under Section 49 of the Rent Act and in particular under Clause (iii) of Sub-section (2) of that section. The rules so made, earlier referred to as the Rent rules, prescribe the procedure to be followed by different Courts in the State for trying the suits, proceedings, applications, appeals and execution orders cognisable by the Court under Sections 28 and 29 of the Rent Act. Chapter IV of these Rules contains Rules 5 to 9 prescribing the procedure to be followed by the Court of Small Causes, Bombay, in suits, proceedings, appeals, etc. Chapter VI-A contains Rules 9A to 9D precribing the procedure to be followed by a Court of Small Causes established under the Provincial Small Causes Courts Act, 1887, in suits, proceedings, etc. and by the District Court in Appeals. Chapter V contains Rules 10 to 13 prescribing the procedure to be followed by a Court of Civil Judge (Junior or Senior Division) in suits, proceedings, and by the District Court in appeals. Chapter VI which contains Rules 14 and 15 is concerned with Court fees and is not material. Chapter VI-A which contains only one rule namely Rule 15-A is headed 'Procedure for suits, proceedings, appeals etc., in city of Ahmedabad and Court fees therefor'. The said Rule 15A reads as under:

Procedure in the Court of Small Causes of Ahmedabad:

Notwithstanding anything contained in Chapter V and Rule 15, in the city of Ahmedabad the provisions of Chapter IV and Rule 14 shall mutatis mutandis apply to suits, proceedings, application, appeals and execution of orders under Sections 28 and 29 of the Act.

Chapter VII which is headed 'General' and consists of Rule 16 provides in that rule that:

The provisions of the Code to be generally followed:

In deciding any question relating to procedure not specifically provided for by these rules the Court shall, as far as possible, be guided by the provisions contained in the Code.

Chapter VI-A would therefore apply and according to Rule 15-A of that Chapter the provisions of Chapter IV shall apply Mutatis mutandis to suits, proceedings, applications, appeals and execution of orders under Sections 28 and 29 of the Act in the Court of Small Causes at Ahmedabad. So far there is no difficulty.

5. The relevant rules of Chapter IV are Rules 5 and 8. These rules so far as material read as under:

5. Procedure for suits the value of the subject matter of which does not exceed Rs. 3,000 and for proceedings for execution of decrees and orders passed therein and for distress warrants;--

In such of the following suits and proceedings as are cognizable by the Court of Small Causes Bombay, on the date of the coming into force of these Rules, namely:

(1) suits relating to the recovery of rents or charges for boarding, lodging or other service provided in a hotel or a lodging house when the amount of value of the subject matter does not exceed Rs. 3,000,

(2) proceeding under Chapters VII and VIII of the Presidency Small Causes Courts Act, 1882,

(3) proceedings for execution of any decree or order passed in any such suit or proceedings,

the Court of Small Causes, Bombay, shall follow the practice and procedure provided for the time being (a) in the said Act, except Chapter VI thereof, and (b) in the rules made under Section 9 of the said Act.

8. Procedure for other suits:

In suits and proceedings other than those referred to in Rules 5 and 7, the Court of Small Causes, Bombay, shall, as far as may be and with the necessary modifications, follow the procedure prescribed for a Court of first instance by the Code including Order XXXVI as modified in its application to the State of Bombay.

In respect of the suits or proceedings covered by Rule 5 the Court is required to follow the practice and procedure provided for the time being (a) in the Presidency Small Causes Courts Act, 1882, except Chapter VI thereof and (b) in the rules made under Section 9 of the said Act to be referred to as Small Cause Rules. The Rule made under Section 9 of the said Act which has been referred to in the argument as relevant is Rule 38 which provides as under:

38(1). In cases to which Section 37 of the Act (Presidency Small Causes Courts Act) applies or in which an appeal is allowed on facts under any enactment for the time being in force, the Judge as the examination of each witness proceeds, shall either (i) make in his own hand or cause to be made a memorandum of the substance of what the witness deposes or (ii) cause the evidence of the witness to be taken in writing in his presence and under his personal superintendence as far as possible and not in the form of question and answer but in the narrative form and the Judge shall, if necessary, correct the same.

(2) Such memorandum or evidence taken down in writing shall be signed by the Judge and shall form part of the record.

The present is a case in which an appeal is allowed on facts under an enactment for the time being in force namely the Rent Act and therefore if Rule 5 of the Rent Rules is attracted the recording of the evidence has to be in the manner set out by the above Rule 38. In the present case it is not disputed that the recording of the evidence is in accordance with the procedure laid down in the said Rule 38. If, however, Rule 8 of the Rent Rules is attracted then according to that rule the Court shall as far as may be and with the necessary modifications, follow the procedure prescribed for the Court of first instance by the Code (Civil Procedure Code). The procedure prescribed for the Court of first instance by the Code is the one laid-down in Order 18 of the Code, the relevant rules of which are Rules 5, 6 and 8. Rule 5 as amended by the Gujarat High Court since 17th August 1961 reads as under:

5. In cases in which an appeal is allowed the evidence of each witness shall be taken down in writing in the language of the Court or in English by or in the presence and under the personal direction and superintendence of the Judge, not ordinarily in the form of question and answer, but in that of a narrative and when completed shall be read over in the presence of the Judge and of the witness, and the Judge shall, if necessary, correct the same and shall sign it.

Before 17th of August 1961 the words 'or in English' were absent in the rule as in force in Gujarat. Then Rules 6 and 8 read as under:

6. Where the evidence is taken in a language different from that in which it is given, and the witness does not understand the language in which it is taken down, the evidence as taken down in writing shall be interpreted to him in the language in which it is given.

8. Where the evidence is not taken down in writing by the Judge, he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record.

It will be noticed therefore that whether under the Code or under Rule 38 of the Ahmedabad Small Cause Court Rules the Judge may record oral evidence himself or cause it to be taken down in writing under his personal direction and superintendence, the recording of evidence has ordinarily to be in narrative form and not in question and answer form and the evidence so recorded as has to be corrected if necessary, and to be signed by the Judge. The substantial difference between the two is that whereas under Rule 38, if the Judge himself records the evidence it may be in the form of substance of evidence, that is not so under Rule 5 Order 18. The evidence under it has to be recorded in full. Another point of difference is that under the Code if the language in which the evidence is recorded is other than that in which the witness has given evidence and the witness does not understand it, it has to be interpreted to him. There is no such requirement under Rule 38. In this case the recording of the evidence is under Clause (i) of Sub-rule (1) of the abovementioned Rule 38 which would be permissible if the case fell under Rule 5 of the Rent Rules.

6. The Appellate Bench took the view that as the subject matter exceeded Rs. 2,000/-, Rule 5 of the Rent Rules did not apply and Rule 8 applied. It then considered the requirements of Rules 5,6 and 8 of Order 18 of the Code and stated that the requirements of these rules had not been complied with because the recording of evidence was not in the language of the Court namely Gujarati (the appellate Bench appears to have overlooked the amendment introduced from 17-8-1961) and because it was not recorded in full but only the substance of the memorandum of evidence was recorded which could be done, the Appellate Bench pointed out, only in non-appealable cases as provided in Rule 13 of Order 18 of the Code. It was urged before the Appellate Bench that this was a mere procedural irregularity and if no prejudice has been caused the trial is not vitiated but the Appellate Bench held that it was an illegality and made an order of remand.

7. Now before me it has not been seriously contended on behalf of the respondent-tenant that Rule 5 of the Rent Rules is limited, in respect of suits, only to those suits the value of the subject matter of which does not exceed Rs. 2,000/-. The very heading of the rules shows that as regards suits to which it applies the value of the subject matter shall not exceed Rs. 3,000/-. There is no dispute that if the limit is Rs. 3,000/-the present suit (No. 2826/61) would be covered. Now, by the rule itself the limit prescribed is Rs. 3,000/- and not Rs. 2,000/- as thought by the Appellate Bench. No amendment to that rule altering the limit from Rs. 3,000/- to Rs. 2,000/- has been brought to my notice and on a specific query by me I was told by both the sides that no amendment prescribing Rs. 2,000/- in respect of suits under the Rent Act before the Ahmedabad Small Causes Courts has been made. But it was urged by Mr. G.N. Desai for the respondent-tenant that the pecuniary jurisdiction of the Ahmedabad Small Causes Court as a Court under the Presidency Small Cause Courts Act is Rs. 2,000/- and therefore that limit should be imported in Rule 5. The argument though advanced was not pressed and advisedly because the pecuniary limit under the Presidency Small Causes Courts Act has nothing to do with the jurisdiction or trial under the Rent Act. The jurisdiction of the Court under the Rent Act is conferred by Section 28 of the Act, and there is no pecuniary limit stated in respect of that jurisdiction. As for trial the Court constituted under Section 28 has to follow the procedure prescribed by the rules framed under Section 31 of the Rent Act and the rule making authority may well think it proper to prescribe a limit which has no relation to the pecuniary jurisdiction of a court functioning under the Presidency Small Causes Courts Act. A faint attempt was made to rely on the words mutatis mutandis used in Rule 15-A and it was argued that by reason of these words Rule 5 should be so read as to mean Rs. 2,000/- where Rs. 3,000/- is stated. I am unable to agree. In Webster's English Dictionary at page 1186 the meaning of the expression 'mutatis mutandis' is given as 'the necessary changes having been made'. In Black's Law Dictionary at page 1172 the expression has been stated to mean 'with the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like. 'The necessary changes would therefore mean such changes as make a rule intelligible when applied to the Court of Small Causes at Ahmedabad. Thus, for example, for the word Bombay the word Ahmedabad would be required to be substituted, wherever it occurs in the rules. But it does not follow that because the pecuniary limits of the Presidency Small Causes Court at Bombay functioning as a Court under the Presidency Small Causes Courts Act is Rs. 3,000/-, therefore when Rule 5 is applied to the Court of Small Causes at Ahmedabad functioning as a Rent Court the limit prescribed under Rule 5 is also to be changed to Rs. 2,000/-. As I pointed out that limit has nothing to do with the jurisdiction of the Court functioning under the Rent Act.

8. The first submission pressed before me on behalf of the tenant was that Rule 5 did not apply to a suit for possession whatever the value of the subject matter may be and a suit for possession must be covered by the residuary Rule 8. It was urged that the suit for possession is not covered by Clause (1) of Rule 5 or Clause (3). It is only Clause (2) which is concerned with the proceedings relating to the possession and the proceedings for possession covered by it are proceedings under Chapter VII of the Presidency Small Cause Courts Act, that is, proceedings by way of application under Section 41 of that Act and those proceedings are opt and cannot be treated as suits. It was not permissible, it was argued, to incorporate into the rule something which was not there, even if the result, of constru ing the rule as it is absurd, particularly when there is a residuary rule in Rule 8 and the party is not without remedy, or a proceeding is not without a prescribed procedure. If the procedure under Rule 5 is not attracted the procedure under Rule 8 is then to be availed of. The reply of Mr. Bhatt for the petitioner is that the expression 'proceedings under Chapter VII' in Clause (2) of Rule 5 is descriptive of the nature of the proceedings and is not meant to convey that the proceedings must have been taken under Chapter VII as such because no such proceedings can lie in the Rent Court having regard to Sections 28, 12 and 13 of the Rent Act. The expres sion must be construed in the light of the old Section 51 of the Rent Act under which it was declared for removal of doubt that unless there was anything repugnant in the subject or context references to suits or proceed ings in the Rent Act shall include references to proceedings under Chapter VII of the Presidency Small Cause Courts Act and references to decrees in the Act shall include references to final orders in such proceedings. He argued that if so construed the word 'proceedings' would include suits. At any rate, he argued, the rules must be so construed as to be consistent with the scheme of the other rules. He invited my attention to the procedure prescribed in respect of trial of suits before the Provincial Small Causes Courts and before the Civil Judge under Chapters IV and V respectively of the Rent Rules.

9. The second submission urged by Mr. G.N. Desai on behalf of the tenant is that when the suit in this case was filed the Ahmedabad Small Causes Court was constituted under the Provincial Small Cause Courts Act and having regard to the saving provision contained in Section 20, Sub-section (6) of the Ahmedabad City Courts Act, 1961 (to be referred to as City Courts Act) the procedure to be followed in respect of pending suits would be the procedure prescribed in the Provincial Small Cause Courts Act, that is to say, the procedure laid down under Chapter IV-A of the Rent Rules. Under Rule 9A falling in that Chapter in respect of suits the value of subject matter of which does not exceed Rs. 2,000/- the procedure prescribed for the time being for a Small Causes Court under the Provin cial Small Causes Courts Act is to be followed and that procedure is no doubt the same as has been followed in the present case but in respect of a suit the value of subject matter of which exceeds Rs. 2,000/-, as here, the procedure prescribed by Rule 9C is to be followed, that is to say, the procedure must be the procedure prescribed for the Court of first instance by the Code. Mr. Bhatt's reply on behalf of the landlord to this submission is that the provisions of Section 20, Sub-section (6) of the said Act would not be attracted because once the procedure has been prescribed by the Rent Act it is that procedure which must be followed in respect of suits covered by the Rent Act, and the provisions of Section 20, Sub-section (6) of the City Courts Act would cover the proceed ings not covered by the Rent Act. He next submitted that even if the procedure prescribed by Rule 8 or Rule 9 is the one to be followed in this case, the non-observance of that procedure is an irregularity and if no prejudice has been caused the trial is not vitiated.

10. Of the three clauses of Rule 5, obviously Clauses (1) and (3) are not attracted to a suit for possession of residential premises as the present suit is. The question, is whether Clause (2) is attracted. In terms the clause speaks of 'Proceedings under Chapters VII and VIII of the Presidency Small Cause Courts Act, 1882.' Therefore, if the clause is literally interpreted the present suit in so far as it relates to possession from the tenant will not fall under it. Mr. Bhatt says that it should not be literally, interpreted because if so interpreted it would be meaningless as no proceed ings under Chapter VII or VIII would lie in a Rent Court after the Rent Act came into force.

11. It is, therefore, necessary first to consider whether proceedings under Chapters VII and VIII can be taken after the Rent Act came into force. Proceedings under Chapter VIII are for recovery of arrears of rent which does not exceed those for 12 months. They are between a landlord and a tenant. The landlord makes an application to the Presidency Small Cause Court and files an affidavit (under Section 53 of that Act) and a warrant is issued under Section 54 addressed to the bailiff of the Court. In pursuance of the warrant the bailiff is entitled to seize his moveable property of specified character (Section 56 and 57) and if necessary remove it to the Court. The debtor or any person alleging himself to be the owner of the property so seized may apply for release of the distrained article (Section 60). Any claim of title made by a stranger has to be adjudicated upon by the Judge of the Small Cause Court and the procedure to be followed in such an inquiry would be that of an ordinary suit in such Court (Section 61). If in an application under Section 60 or 61 the value of the subject matter in dispute exceeds Rs. 1000/- the application may be transferred to the City Civil Court if the City Civil Court so directs. In default of any order to the contrary the distrained property is to be sold (Section 65) and the proceeds shall after meeting the costs be utilized for the satisfaction of the debt.

12. It is obvious that proceedings under Chapter VIII are different from a suit for recovery of rent. The application is not a plaint, and there is no opportunity for the tenant to be heard before the warrant issues but there is an opportunity later by an application or a suit, as the case may be, for challenging the right of the applicant to distrain the goods. Now in respect of premises to which the Rent Act applies, the Rent Court exercises jurisdiction only under the Rent Act and, therefore, a proceeding relating to a claim for recovery of arrears of rent by a landlord from a tenant must be tried and decided by the Rent Court having regard to Section 28 of the Rent Act and it must be so tried and decided in accordance with the procedure laid down under the Rent Act. Therefore, unless the Rent Act permits the issue of a distress warrant, no proceedings for distress can lie under the Act before the Rent Court.

13. The question whether having regard to the provisions of the Rent Act, it was permissible for a landlord to resort to the right available for distress under Chapter VIII under the Presidency Small Cause Courts Act was raised before this Court in Khemchand v. Mohmadbhai 6 G.L.R. 829. There the Rent Court had issued a distress warrant at the instance of the landlord for recovery of arrears of rent. The tenant came in revision to the High Court and the contention raised before the High Court was that the Rent Court cannot exercise jurisdiction under Chapter VIII of the Presidency Small Cause Courts Act, no such power having been conferred on it specifically by the Rent Act. The Court did not go into the question whether the powers under Chapter VIII of the Presidency Small Cause Courts Act would be available to the Rent Court if there was no provision in that regard made under the Rent Act but pointed out that the powers to issue distress were available under the Rent Act itself by virtue of Clause (iii) of Sub-section (2) of Section 49 of the Act and that Clause (2) of Rule 5 read with Rule 6 of the Rules in so far as they prescribe the procedure in respect of proceedings for distress were attributable to the exercise of that power. Rule 6 to which reference has just been made reads as under:

Affidavits in distress warrant applications:

Every application for a distress warrant under Chapter VIII of the Presidency Small Cause Courts Act, 1882, shall be accompanied also by an affidavit of the applicant or his duly constituted agent stating that the amount claimed is not in excess of the rent recoverable under the Act.

It was argued before the Court that Clause (2) of Rule 5 in terms speaks of proceedings under Chapter VIII of the Presidency Small Cause Courts Act and not proceedings under the Rent Act or in exercise of powers under Section 49 of the Rent Act, His Lordship, the then Chief Justice, said:

The rule could have been expressed in more lucid terms, but, read as a whole, it is clear that it empowers the Small Cause Court even while exercising its jurisdiction under the Rent Act, to take proceedings under Chapters VII and VIII of the Presidency Small Cause Courts Act, 1882 and further provides that if such proceedings are taken, it shall follow the procedure provided in that Act, except the procedure laid down in Chapter VI thereof, or in the rules made under Section 9 of that Act. It is no doubt true that in Sub-rule (2) of Rule 5 what are mentioned are the proceedings under Chapter VII and VIII of the Presidency Small Cause Courts Act, 1882 and not proceedings under the Rent Act. But that had to be done because though the Small Cause Courts Ahmedabad, has been constituted as a Rent Court under Section 28 of the Rent Act, unlike other Rent Courts it has the power to issue distress warrants which the other Rent Courts have not under Chapter VIII of the Presidency Small Cause Courts Act, 1882. The draftsman, being aware of this difference between the Small Cause Court and the other Rent Courts deliberately used the phraseology to be found in Sub-rule (2) of Rule 5. That the Legislature intended the Small Cause Court to exercise the power of issue in distress warrants even when constituted as a Rent Court is manifest from the fact that Section 49(2)(iii) of the Rent Act empowers the State Government to frame rules in regard to issuance of distress warrants by the Small Cause Court when exercising its jurisdiction under the Rent Act. In other words, Rule 5 read along with Section 49(2)(iii), permits, in matters arising under the Rent Act including the recovery of rent, the Small Cause Court in proceedings cognizable by it on the date of the coming into force of these rules to adopt proceedings under Chapter VIII of the Presidency Small Cause Courts Act, 1882, and the rule provides that if such proceedings are taken, the procedure to be followed would be the procedure laid down in that Act.

It was therefore held that Rules 5 and 6 were not ultra vires the Rent Act. Therefore, although the said Rule 5 speaks of 'proceedings under Chapter VIII of the Presidency Small Cause Courts Act' the expression was construed as referring not in terms to the proceedings taken under that Chapter but to the proceedings of a similar nature taken under the power to issue distress warrant conferred by the Rent Act and as adopting by reference the procedure prescribed in the Presidency Small Cause Courts Act except in so far as modified by the Rent Rules.

14. Bearing this in mind, the expression 'proceedings under Chapter VII' used in Clause (2) of Rule 5 may be considered. It will be convenient first to have a look at the provision of that Chapter. The Presidency Small Cause Courts Act has no jurisdiction to entertain a suit for possession of immoveable property but proceedings for recovery of possession can be taken under Chapter VII. That chapter is headed 'Recovery of possession of immoveable property Section 41 which is the principal section provides so far as material that where any person has had possession of immoveable property of which the annual rent does not exceed Rs. 2,000/- as tenant or by possession and such tenancy or permission, as the case may be, has been duly determined, an application for possession can be made. On this a summons is issued to the occupant (Section 42). If the occupant does not appear or does not show cause to the contrary and the Court is satisfied about the applicant's right, an order for possession issues (Section 43) and on the execution of that order the applicant can be put into possession by the bailiff (Section 44). There is no right of appeal but the person aggrieved can file a suit against the applicant when such applicant was not at the time of applying for such order entitled to the possession of such property (Section 46), or before an order for possession is made or executed the occupant may apply to the Court that he will institute a suit in the City Civil Court at Ahmedabad in which case the order in the application will abide the result of the suit. The procedure prescribed for proceedings in Chapter VII is the procedure prescribed for the Court of first instance by the Code (Section 48). The recovery of possession in this Chapter is not to bar a suit on title (Section 49).

15. Now, there is no doubt that in so far as the proceedings under Chapter VII relate to the recovery of possession from a licensee, Section 28 of the Rent Act is not attracted. But in so far as they relate to recovery from a tenant the said Section 28 would be attracted and the Rent Court will have exclusive jurisdiction to be exercised in accordance with the provisions of the Rent Act. The fact that the proceedings under Chapter VII start with an application and not a plaint is not of much importance because under the Small Cause Rules, such an application has to be in the form of a plaint. Similarly the procedure prescribed by those rules is akin to the procedure of a trial in a suit. The substantial difference however is that in a proceeding under Chapter VII, the restrictions on the landlords right to possession laid down by Section 12 and 13 of the Rent Act would not be available, though an aggrieved party may file a suit under Section 46 of the Small Cause Courts Act. It is not permissible to assume that although a defence under Section 12 or Section 13 is taken by the defendant before a Rent Court, he is to be referred to a separate suit. The first proviso to Section 50 of the Rent Act indicates to the contrary. It is also not to be assumed that a right of appeal expressly conferred by the Rent Act 'notwithstanding anything contained in any law' is nevertheless not available in respect of proceedings exclusively cognizable by the Rent Court. In Babulal v. Anandram 60 B.L.R. 954 and p. 957. Their Lordships of the Supreme Court refer to the fact that in proceedings under Section 41 of Chapter VII, no claims or rights are determined and in such a situation it is clearly understandable that nothing contained in Chapter Vll could be a bar to the institution of a suit in the High Court for trying a title to the immoveable property but in a suit under Section 28, they say, 'the Court has to determine all questions relating to recovery of rent or relating to possession and all claims or questions arising out of the Act or any of the provisions.' It is, therefore, clear that orders of the nature contemplated by Chapter VII are not contemplated by the provisions of the Rent Act. In respect of distress, a power could be spelt out of Section 49(2) '(iii) of the Rent Act but not so in respect of a proceeding for possession of the character provided in Chapter VII. In the absence of any provision in the Rent Act empowering the Rent Court to exercise powers of that nature or enabling a party to call upon the Rent Court to do so, proceedings under Chapter VII cannot lie before the Rent Court as between a landlord and a tenant.

16. In Ranjit Patirqj v. Behram 65 B.L.R. 464, the landlord sued the defendant for possession on the ground that defendant was his tenant. The suit was filed under the Rent Act before the Presidency Small Causes Court, Bombay. The defendant's contention was that he was not the plaintiff's tenant but was a sub-tenant of one Atmaram and was entitled to remain in possession. The issues which arose on these conflicting claims were tried and decided in favour of the landlord and a decree for eviction was passed. The defendant then filed a suit in the City Civil Court, Bombay under Section 46 of the Presidency Small Causes Court Act and one of the questions which arose before the Division Bench of the High Court was whether Sections 46, 47 and 49 of the said Act were available to him. The Court said;

While considering this aspect of the matter it has to be borne in mind that the Rent Act is a special Act dealing with a special subject matter, viz. landlord and tenant, while the Presidency Small Causes Courts Act is a general Act, and by reason of the opening words of Section 28 protanto quos the special subject Rent Act will override and modify the provision of the latter Act. Thus, a landlord cannot recover possession under Section 41 of the Presidency Small Cause Courts Act. Similarly Sections 46 and 47 will be governed by the overriding provisions of Section 28 of the Rent Act, and a licensee against whom an application is filed under Section 41 of the Presidency Small Causes Courts Act must if he sues in trespass file the suit in the Special Court under the Rent Act, if he alleges that the owner is not entitled to recover possession because of his being a tenant or a sub-tenant.

The same view was taken also in Ramkishore v. Vijayabahadursingh 65 B.L.R. 712. There also the question was whether in a case governed by the provisions of Section 28 of the Rent Act it is permissible for a party to take recourse to a suit under Chapter VII of the Presidency Small Cause Courts Act. After referring to the scheme of that chapter and the overriding provisions of Section 28 of the Rent Act, Their Lordships say;

The suit necessarily raises claims and questions under the Act and expressly relates to the recovery of possession by the landlord from the tenant in execution of the decree. The suit must clearly, therefore, fall within the jurisdiction of the special Presidency Small Causes Courts Act is a general Act while the Rent Act is a special Act which deals with a special topic i.e. claims and questions between the landlords and tenants. By the opening words 'notwithstanding any other law to the contrary' in Section 28, the special provisions of Section 28 of the Act over-ride those of Presidency Small Causes Court Act pro tanto notwithstanding the fact that in Sections 47 and 48 of the latter Act the High Court and Bombay City Civil Court have been referred to in express words. These sections are procedural sections and the special Act is entitled to affect these sections even though the Presidency Small Cause Courts Act is a Central Act.' With respect I agree with the view taken on the subject in these decisions.

17. Mr. G.N. Desai made a faint attempt to urge that a proceeding under Chapter VII of the Presidency Small Cause Courts Act as such can be taken before the Rent Court. He instanced the case of premises-let for one of the purposes, not covered by Section 6(1) of the Rent Act. He also instanced the case where the tenancy is determined by forfeiture. The simple answer in respect of the first instance is that Section 28 of the Rent Act would not be attracted as the Rent Court will have no jurisdic tion. As for the second instance the learned Advocate did not say how Section 28 of Rent Act was not attracted. He then argued that the wording of Section 51 of the Rent Act set as it stood before it was deleted by the Gujarat Adaptation of Laws (State and Concurrent Subjects) Order, shows that proceedings under Chapter VII were contemplated even under the Rent Act. The contents of that section have been earlier mentioned. The section, as would appear from its language, is meant to remove doubts and is not meant to authorise proceedings under Chapter VII. The section appears to be consequential to the first proviso to Section 50 of the Rent Act and does no more than clarify what is implicit in Section 28. Presumably the section was meant to cover pending proceedings and transitional situations. If anything, the section indicates that in respect of proceedings falling under the Rent Act they would carry the meaning and have the consequences provided for in the Rent Act, whatever the phraseology used in the Presidency Small Cause Courts Act.

18. It is, therefore, clear that where the provisions of the Rent Act apply no 'proceedings under chapter VII' can in terms lie, and the expression in Rule 5 of the Rent Rules, if it is to be given any meaning and content, must be construed liberally that is to say as indicating not proceedings under the provisions of the said chapter VII but the nature or character of the proceedings, that is to say a proceeding by a landlord for obtaining possession from a tenant whose tenancy has been determined. It is not to be assumed that Rule 5(2) in so far as it refers to 'proceeding under chapter VII' was purposeless. It is here that the scheme of the rules in relation to procedure of the Court of first instance. It is not unreasonable to think that in using the expression 'proceedings under chapter VII' in Rule 5(2), the rule making authority was being consistent with the scheme and intended to provide for proceedings for possession which would but for the Rent Act lie under chapter VII.

19. But Mr. M.C. Shah for the tenant submits that in so construing the language of Rule 5(2) we are not only doing violence to the plain words of the rule but are also adding to it and this, he submits, the Court is not entitled to do, in view of well recognised rules of construction. He invited my attention to the various passages at pages 23 and 24 of 'Principles of Statutory Interpretation' by G.P. Singh. He also called to aid the maxim 'Expressio Unius Exclusio Alterious' and submitted that when Rule 5(2) expressly mentions 'proceedings under chapter VII', by necessary implication, other proceedings and suits are excluded. The sum and substance of the passages referred to by him is that if the words of a statute are in themselves precise and unambiguous, then no more is necessary then to expound those words in their natural and ordinary sense. The words themselves do also in such cases best declare the intent of the lawgiver. This, no doubt, is true, but the assumption underlying it is that the meaning of the words so construed in their natural and ordinary sense, however, unreasonable or unjust or oppressive that meaning may be, is nevertheless a meaning which gives effect to the provision. If the plain meaning makes the statutory provision devoid of any legal effect or makes the statutory provision devoid of any legal effect or makes it wholly ineffective, the Court must endeavour to give it a meaning which without doing violence to the scheme of the statutory provisions, gives effect to the statutory provision or the exercise of the statutory power. It is a well recognised principle that the Courts strongly lean against a construe tion which reduces a statute to a futility. As the Supreme Court points out in Tirathsing v. Bachittar Singh : [1955]2SCR457 , to remove an apparent absurdity arising from strict grammatical construction, a construction may be put which modifies the meaning of words and even the structure of sentence and Maxwell in his Interpretation of Statutes (11th Edition page 221), to which the Supreme Court makes reference, proceeds to add 'this may be done by departing from the rules of grammer, by giving an unusual meaning to particular words, by altering their collocation, or rejecting them altogether, under the influence, no doubt, of an irresistible conviction that the legislature could not possible, have intended what its words signify, and the modifications thus made are mere corrections of careless language and really give the true meaning.' The expression 'proceedings under chapter VII' in its plain meaning cover a proceeding between a licensor and a licensee but that, it is conceded, is not covered by the Rent Act and the Rent Rules. And as regards the claim for possession by a landlord against a tenant, if the view of law earlier taken is correct, there cannot in terms be a proceeding under chapter VII before the Rent Court. Therefore, if the plain meaning is adopted the provisions of Rule 5(2) are futile with reference to the provisions of the Rent Act and would be outside the rule making power conferred by Section 49 of that Act. The rule making authority had no power to provide a procedure for a proceeding which is not available under the Rent Act. I am not, however, asked by the advocates of the tenants to hold that Rule 5(2) is ultra vires. All the arguments have proceeded on the footing that the rule is within the rule making power and the only question is what meaning is to be attached to it. If it is not to be a futile rule the meaning to be given to it will have to be the one earlier indicated.

20. That takes me to the next submission on behalf of the tenant, namely that having regard to Section 20(6) of the City Courts Act, the procedure laid down in Rule 9C of the Rent Rules should have been followed. Section 20 which provides for transfer of pending proceedings, consequent on the establishment of different classes of Courts in the City of Ahmedabad by the City Courts Act, provides in Sub-section (6) as under:

A proceeding, appeal or revision application transferred to any Court under the foregoing provisions of this section shall be disposed of by such Court as if it were the Court from which such proceeding, appeal or revision application was so transferred.

The present proceeding was pending in the Court of Small Cause Ahmedabad constituted under the Provincial Small Causes Courts Act and was transferred by virtue of the above mentioned Section 20 to the Presidency Small Cause Court constituted under the Presidency Small Causes Courts Act as established by the City Courts Act. Therefore, if Sub-section (6) was attracted the preceding must be disposed of as if the transferee Court was a Court constituted under the Provincial Small Cause Courts Act and in that case the procedure to be followed would be that prescribed for a Provincial Small Causes Courts. Mr. Bhatt, however, contends that this Sub-section (6) of Section 20 is a general provision applying to all matters covered by the proceeding sub-section but when out of those matters any matter is covered specifically by the procedure prescribed by the Rent Rules, the procedure as prescribed would apply. The procedure prescribed under the Rent Rules is a special procedure prescribed for a special Court and would override provisions of a general nature relating to procedure. As a general proposition Mr. Bhatt's submission that a special provision must override a general provision is correct. But the pending proceeding in the present case was before the Ahmedabad Small Causes Court as a Rent Court and not under the Provincial Small Cause Courts Act. The transfer was to the Presidency Small Cause Court functioning as a Rent Court under the Rent Act. The procedure prescribed in either case was a special procedure and therefore it cannot be said that with respect to the proceedings under consideration, the result of giving effect to Sub-section (6) would be to give effect to a general provision in preference to a special provision. If the law provides that out of the different procedures prescribed under the same Act, one particular procedure be followed, it becomes a special provision in that regard. Mr. G.N. Desai is, therefore, in my opinion, right when he contends that the procedure prescribed in Rule 9C should have been followed.

21. Mr. Bhatt's submission then is that unless prejudice has been caused, the irregularity in procedure does not vitiate the trial and does not call for interference by the appellate Court. This argument is advanced also in respect of the contention that Rule 8, and not Rule 5, applies. Mr. Desai's submission is that Rule 5 of Order 18 which was to be followed (whether under Rule 8 or Rule 9C of the Rent Rules) uses the word 'shall' and is mandatory and the question of prejudice is irrelevant, but even if it was otherwise, the appellate bench having held there was prejudice, this Court in revision cannot interfere. The appellate bench, as I shall presently point out did not go into the question whether the rule was mandatory or directory but held that the violation of its provision was so substantial as to amount to an illegality and not an irregularity and therefore it did not consider the question of prejudice.

22. Whether Rule 5 Order 18 is mandatory or directory cannot depend merely on the use of the expression 'shall' in the rule. It is well established that the mandatory language of an enactment affords no justification for the conclusion that its provisions are always imperative in the sense that any act done in violation of it will be invalid. Rule 5 of Order which imposes certain obligations on the Court issuing a summons has been held in Ravendra Nath v. Amiya Choudhry : AIR1959Cal231 as not mandatory in that regard, although the word 'shall' has been used and it occurs twice in the rule. Similarly although Rule 4 of Order 3 provides that 'no pleader shall act for any person in any Court, unless he has been appointed for the purpose by a document in writing signed by such person,' it has been held by the Full Bench of the Andhra Pradesh High Court in Satyanarayana v. Venkata A.I.R. 1957 A.P. 172 that the absence of authority to a pleader is only an irregularity. Under Rule 27(2) of Order 41, the Appellate Court 'shall record reasons' for the admission of additional evidence. It has been held to be not mandatory and the admission of additional evidence was not vitiated by the omission to record reasons (see K. Venkataramiah v. Sutharam Reddy : [1964]2SCR35 ). Moreover it may be noticed that Rule 8 and Rule 9C of the Rent Rules with which we are concerned themselves reduce the rigour, if any, of the expression 'shall' used in Rule 5 of Order 18, because they provide that the Court shall, as far as may be, and with necessary modifications follows the procedure prescribed for a Court of the first instance. Ultimately, therefore, nothing turns on the language. Everything turns on the content and object of the requirement. So looked at it is not possible to hold that the requirement as to the fullness of the recording of the deposition is mandatory in the sense that it must be obeyed or fulfilled exactly. Rule 5 is concerned with the recording of what the witness deposes in Court. The rule itself provides-in fact requires the recording to be ordinarily in narrative form. The record is not to be literally exact. The object of the rule obviously is to ensure that the record is a faithful or accurate narrative of what the witness has stated. Is that object necessarily defeated of everything stated by the witness is not taken down? In fact the Court has discretion not to take down irrelevant answers or repetitive answers. There is no public policy involved in the exact observance of the rule. The question is whether the essential aim of the legislature is necessarily defeated by a failure to strictly observe the requirement as to the full record of the deposition. As stated in the decision of the Andhra Pradesh High Court in Satyanarayana v. Venka (supra), the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity: if he cannot it is a nullity. It needs no argument that in the present case the party could have waived the objection. The contention that the rule in so far as it requires the deposition to be fully recorded is mandatory cannot, therefore, be accepted.

23. That takes me to the question of prejudice. It will be noticed that the only violation of Rule 5 of Order 18 alleged is that the evidence has not been taken down in full. Now Mr. Bhatt says that the plaintiff filed an affidavit before the appellate bench that in recording the evidence not a single material statement was omitted by the trial Judge and that has not been controverted. He even requested the appellate Bench to call for a report from the trial Judge and satisfy itself on the point. Even before this Court the advocate for the respondent-tenant has not urged in what way the record of the deposition of any of the witnesses was materially different from what the witness deposed. In fact the depositions recorded are very lengthy and Mr. Bhatt went so far as to ask the advocate for the tenant to mention a single material statement which was not recorded. The attention of the appellate bench was invited on behalf of the landlord to the ruling of the Calcutta High Court in Promoda Nath v. Harishee Bagdhi : AIR1929Cal78 in which the learned Judge held that the non-observance in that particular case of the procedure laid down in Rule 5 Order 18 was not an illegality but an irregularity and in the absence of any allegation against the accuracy of the record and of any objection being taken before the trial Court as to the mode of recording evidence the High Court should not interfere. The Appellate Bench, in the present case, disposed of the submission by observing that the facts in the Calcutta Case were different and as in the present case the trial Judge had recorded only the memorandum of the substance of the evidence and not the total evidence of the witness in the language in which he deposed the procedure cannot be said to be an irregularity but an illegality. The learned Judges appear to have been influenced by the fact that the recording was in English, whereas in their view it should have been in the language of the Court only, a view based on a wrong impression of the wording of the Rule 5 of Order 18. They do not, therefore, appear to have examined the submission that even the substance of memorandum also was a faithful and adequate record of the evidence. Here we are concerned with the fullness and accuracy of the record. There is no allegation of absence of accuracy and as regards fullness, there is no allegation that any material portions were not recorded. When we consider whether there has been violation of requirement, we look at the substance and not the form. Whatever prima-facie inference of prejudice to the respondent-tenant can arise from a mere non-observance of the rule of full record is met by an affidavit on behalf of the petitioner which is not controverted. As I said the Appellate Bench appears to have been influenced by the fact that the recording was in English. If it had been brought to its notice that was permissible under the rule, it may not have taken the view it did. In my opinion no prejudice has been made out.

24. It is true, as contended by Mr. Desai, that this Court in revision cannot substitute its own judgment for the judgment of the Appellate Bench as to the presence or absence of prejudice. But in this case the Appellate Bench has not really considered the question of prejudice and while holding that an illegality has been committed it has been weighed by the impression that the recording of evidence in English was not warranted by the rule. Therefore, there is no question of this Court sub statuting its own judgment for that of the Appellate Bench on a question of fact.

25. For these reasons the revision application (No. 869/68) is allowed. The order of the Appellate Bench is set aside and the Appellate Court is directed to dispose of the matter in accordance with law. The respondent to pay the cost of the application in one set. The revision application No. 1194/68 will be heard on other points arising in it.


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