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Jadeja Shivubha Dolubha Vs. Gujarat State Road Transport Corporation - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtGujarat High Court
Decided On
Judge
Reported in(1977)18GLR656
AppellantJadeja Shivubha Dolubha
RespondentGujarat State Road Transport Corporation
Cases ReferredLtd. v. Asstt. Commr. Sales Tax Kanpur
Excerpt:
.....of procedural laws. (emphasis supplied by me) 4. in view of this settled legal position that the word 'entertain' would not mean 'to receive and determine' but it would mean 'adjudicate upon' or 'proceed to consider on merits'.if that is the real meaning of word 'entertain',it cannot be gainsaid that the legislature under section 16 clearly intended that civil courts shall have no jurisdiction to adjudicate upon or proceed to consider on merits in any suit or proceeding in respect of eviction of any person on specified grounds from public premises. in other words, the legislature, by adopting the word 'entertain' clearly intended to oust the jurisdiction of civil courts, in that view of the matter therefore, i do not think that the decision of the bombay high court can be of any..........of civil judge (j.d.) kalavad against the present applicant for his eviction and possession of the suit premises and for arrears of rent and damages. both the suits were consolidated. the suits were filed on april 29, 1972. during the dependency of the suits, the gujarat public premises (eviction of unauthorised occupants) act, 1972 came in force. the applicant, therefore, gave an application in the suits that as the provisions of the said act relate to eviction of the applicant from the public premises which are admittedly governed by the said act, the civil court's jurisdiction was ousted in view of the clear provision contained in section 16 of the said act. the applicant prayed that necessary issues be raised in that behalf. the trial court granted the application and raised the.....
Judgment:

B.K. Mehta, J.

1. Shortly stated, the facts leading to this petition are as under:

The opponent-Corporation, which is the original plaintiff, filed two civil suits being Regular Civil Suit No. 33 of 1972 and Regular Civil Suit No. 34 of 1972 in the Court of Civil Judge (J.D.) Kalavad against the present applicant for his eviction and possession of the suit premises and for arrears of rent and damages. Both the suits were consolidated. The suits were filed on April 29, 1972. During the dependency of the suits, the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 came in force. The applicant, therefore, gave an application in the suits that as the provisions of the said Act relate to eviction of the applicant from the public premises which are admittedly governed by the said Act, the Civil Court's jurisdiction was ousted in view of the clear provision contained in Section 16 of the said Act. The applicant prayed that necessary issues be raised in that behalf. The trial Court granted the application and raised the issue, whether the Court has jurisdiction to entertain the suits. In the opinion of the learned trial Judge since the Act came into force on June 26, 1973. Section 16 of the said Act would not oust the jurisdiction of the Civil Court in pending actions. In that view of the matter, the learned trial Judge by his order of January 31, 1976 answered the issue in the affirmative and in favour of the Corporation It is this order which is the subject matter of this revision application before me.

2. A short but interesting question arises as to what is the effect of Section 16 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972, which came in, force on June 26, 1973. Section 16 reads as under:

16. No Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person on the ground that he is in unauthorised occupation of any public premises or for any other reason specified in Sub-section (1) or Section 4, or the recovery of the arrears of rent payable under Sub-section (1) of Section 7 or the damages payable under Sub-section (2) of that section or the costs awarded to the State Government or the corporate authority under Sub-section (5) of Section 9 or any portion of such rent, damages or costs.

By this section the jurisdiction of Civil Court is ousted to entertain any suit or proceeding in respect of eviction of any person on the ground that he is in unauthorised occupation of any public premises or on any other ground specifically enumerated in the said section. It is common ground between the parties before me that the premises occupied by the applicant herein are owned by the opponent-Corporation in terms of the definition of words, 'public premises' given in Section 2(f) of the said Act. It is also common ground that the suits were pending in the Civil Court when the said Act came into force. It is settled position of law that in general when the substantive law is altered during the dependency of an action, the rights of parties are decided according to the law as existed when the action was begun unless new statute shows a clear intention to vary such rights (vide Maxwell on Interpretation of Statutes, 12th Edition, page 220). In the ultimate analysis, therefore, it is always a question of legislative intent whether Civil Court's jurisdiction in pending actions is ousted by change in law. It may be done by express language or by necessary implications. In order to answer the question raised in issue, whether the Civil Court's jurisdiction is ousted by necessary implication as evinced in Section 16 of the Act, one has to look to the language of Section 16 itself The section prohibits Civil Courts to entertain any suit or proceeding in respect of eviction of a person on the prescribed ground from the public premises. The problem, therefore, is: what is the meaning of expression, 'to entertain any suit or proceeding'? Does it mean 'to receive and determine', or 'adjudicate upon', or ' consider on merits' My attention has been invited to a decision of a Division Bench of the Bombay High Court in Gyangirji Narsinggirji Math v. Manibai and Anr. v. Raj Kumar Harpal Deo and Anr. : AIR1967Bom92 where the Division Bench was facing a similar problem where by application of Section 110F of the Motor Vehicles Act, 1939 a question arose whether Civil Court's jurisdiction was ousted in pending suits or proceedings when a Claims Tribunal was constituted under the said Act. The wordings of Section 110F of the said Act are similar to one with which, I am concerned in the present petition. Section 110F provides:

110F. Bar of jurisdiction of Civil Courts - Where any Claims Tribunal has been constituted for any area no civil court shall have jurisdiction to entertain any questions relating to any claim for compensation which may be adjudicated upon by the claims Tribunal for that area and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court.

The question, therefore, arose before the Bombay High Court that when Claims Tribunal is so constituted, the jurisdiction of Civil Court in pending actions is ousted or not and the Division Bench reiterated the well settled rules of construction of statutes that the statutes are generally not to be construed to apply retrospectively unless made so expressly or by necessary implication except in the case of procedural laws. The Court thereafter proceeded to consider, whether there was any necessary intendment in Section 110F itself so as to oust the jurisdiction of Civil Court. In paragraph 9 of the judgment at page 94, Patel, J. speaking for the Division Bench, observed as under:

The language moreover of Section HOP also does not lead to an inference that the legislature intended to exclude the jurisdiction of the Civil Court in pending matters. The words used in Section 11OF are that 'no Civil Court shall have jurisdiction to entertain '.'To entertain' means to 'receive and determine.' It is a prohibition applicable in future. It does not even by implication prohibit the continuance of a proceeding already commenced in a civil Court, but only prohibits the reception and determination by the Court of any cause or matter after the constitution of the Tribunal.

Learned Advocate, appearing for the petitioner, however, pointed out that the meaning of words 'to entertain' is no more in debate in view of the two decisions of the Supreme Court. The first decision is M/s Lakshmiratan Engineering Works Ltd. v. Asstt. Commissioner (Judicial) I. Sales Tax, Kanpur Range, Kanpur and Anr. : [1968]1SCR505 where the Court was concerned with the question of right of a party to file an appeal under the U.P. Sales Tax Act, 1948 and the U.P. Sales Tax Rules, 1948 and the power of the appellate authorities to insist for the payment of tax before entertaining such appeal. In that case the question posed before the Court was: what is the meaning of word, 'entertain'. Hidayatullah J. speaking for the Court, in that connection observed as under:

A question thus arises what is the meaning of the word 'entertained' in this context? Does it mean that no appeal shall be received or filed or does it mean that no appeal shall be admitted or heard and disposed of unless satisfactory proof is available? The dictionary meaning of the word 'entertain' was brought to our notice by the parties, and both sides agreed that it means either 'to deal with or admit to consideration.' We are also of the same opinion.

The Court thereafter considered various decisions of Allahabad High Court as to the meaning of word 'entertain' under Order 21 Rule 90 of the Code of Civil Procedure as amended. The Supreme Court thereafter approved those decisions and especially Haji Rahim Bux and Sons v. Firm Samiullah and Sons : AIR1963All320 which held in effect that the word 'entertain' meant not 'receive' or 'accept' but 'proceed to consider on merits' or 'adjudicate upon'. It has been thereafter held in paragraph 10 of the decision of the Supreme Court that--

In our opinion these cases have taken a correct view of the word 'entertain' which according lo dictionary also means 'admit to consideration.

3. In Hindustan Commercial Bank Ltd. v. Pimnu Sahu : AIR1970SC1384 , the Supreme Court was concerned with the question, whether amended Rule 90 of Order 21 of the Code of Civil Procedure would affect the rights of parties in pending actions. The amended rule adopted the similar phraseology as one with which I am concerned in this revision application. The amended proviso has been set out in the said judgment. Hegde, J. as he then was, speaking for the Court in that context observed as under:

Before the High Court it was contended on behalf of the appellant and that contention was repeated in this Court, that Clause (b) of the proviso did not govern the present proceedings as the application in question had been filed several months before that clause was added to the proviso. It is the contention of the appellant that the expression 'entertain' found in the proviso refers to the initiation of the proceedings and not to the stage when the court takes up the application for consideration. This contention was rejected by the High Court relying on the decision of that court in Kundan Lal v. Jagan Nath Sharma : AIR1962All547 . The same view had been taken by the said High Court in Dhoom Chand Jain v. Chamanlal Gupta : AIR1962All543 and Haji Rahim Bux end Sons v. Firm Samiullah and Sons : AIR1963All320 and again in Mahavir Singh v. Gauri Shanker : AIR1964All289 . These decisions have interpreted the expression 'entertain' as meaning, 'adjudicate upon' or 'proceed to consider on merits.' This view of the High Court has been accepted as correct by this Court in Lakshmiratan Engineering Works, Ltd. v. Asstt. Commr. Sales Tax Kanpur : [1968]1SCR505 . We are bound by that decision and as such we are unable to accept the contention of the appellant that CI. (b) of the proviso did not apply to the present proceedings.

(Emphasis supplied by me)

4. In view of this settled legal position that the word 'entertain' would not mean 'to receive and determine' but it would mean 'adjudicate upon' or 'proceed to consider on merits'. If that is the real meaning of word 'entertain', it cannot be gainsaid that the Legislature under Section 16 clearly intended that civil Courts shall have no jurisdiction to adjudicate upon or proceed to consider on merits in any suit or proceeding in respect of eviction of any person on specified grounds from public premises. In other words, the Legislature, by adopting the word 'entertain' clearly intended to oust the jurisdiction of Civil Courts, In that view of the matter therefore, I do not think that the decision of the Bombay High Court can be of any assistance to the cause of the opponent Corporation.

5. The result is that this revision application is allowed and the order of the trial Court is set aside. The issue, whether Civil Court has jurisdiction or not, is answered in the negative. The suit should, therefore, be dismissed. Having regard to the facts and circumstances of this case, there should be no order as to costs in this revision application. Rule is made absolute accordingly.


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