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Mangaldas Nenumal Vs. Hasumati Jashwantrai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1983)2GLR1364
AppellantMangaldas Nenumal
RespondentHasumati Jashwantrai
Cases ReferredRajaram Withal v. Ramchandra Panda A.I.R.
Excerpt:
.....application for fixation of standard rent is dismissed for default under order 9 rule 8 of the civil procedure code and no application for setting the dismissal aside as contemplated under order 9, rule 9 of the civil procedure code has been filed some of the undisputed facts in the present case are that the landlord had served a notice dated 26th december 1972 on the tenant. by reason of section 141, the company court is to follow the procedure provided in regard to suits as far as it may be made applicable, for example, the provisions for discovery, inspection, hearing evidence, summoning of witnesses and the like, but the company court cannot arrogate to itself the special powers and jurisdictions conferred by the code on the civil court. now, it is perfectly clear that when the..........been dismissed for default on the part of the plaintiff. therefore, ordinarily, a fresh standard rent application would not he unless the circumstances have so changed that the standard rent should be fixed again. since in the instant case before us there is no question about any change of circumstances, it is not necessary for us to dwell on this aspect of the matter.16. a perusal of the aforesaid judgments in barkatali's case (supra) and dhobi raheman pirbhai's case (supra) shows that attention of both the courts was not invited to the various aforesaid decisions referred to by us. it further shows that the submissions which were made before us in that connection were not made before the said courts. it is in the aforesaid circumstances that we have departed from the view taken in.....
Judgment:

R.J. Shah, J.

1. A tenant whose Civil Revision Application No. 1 of 1979 against the order dated 21st November 1978 passed by the trial Court in Civil Miscellaneous Application No. 15 of 1977 dismissing the fresh application for fixation of the standard rent was dismissed by the District Judge, Junagadh by his order dated 4th July 1981 holding that the said fresh application was not maintainable has come in revision before this Court raising an interesting contention, namely,

Is a fresh application for fixation of standard rent on the same cause of action maintainable even though the previous application for fixation of standard rent is dismissed for default under Order 9 Rule 8 of the Civil Procedure Code and no application for setting the dismissal aside as contemplated under Order 9, Rule 9 of the Civil Procedure Code has been filed

Some of the undisputed facts in the present case are that the landlord had served a notice dated 26th December 1972 on the tenant. The tenant had given a reply dated 17th January 1973 and had raised the dispute regarding the standard rent. The tenant thereafter had filed Civil Misc. Application No. 13 of 1973 for fixation of standard rent. The rent up to January 31, 1977 was deposited in Court as per the order of the Court passed in Civil Misc. Application No. 13 of 1973. The said application for fixation of standard rent was dismissed for default on 25th February, 1977. The aforesaid fresh application for fixation of standard rent also came to be dismissed as stated above.

2. Chapter IV-A of the Bombay Rents, Hotel and Lodging House Rates Control Rules, 1948 (hereinafter referred to as the Bombay Rent Control Rules) provides for the procedure to be followed by a Court of Small Causes established under the Provincial Small Cause Courts Act, 1887, in suits, proceedings, etc. Rule 9-A thereof provides as under:

A court of Small Causes established under the Provincial Small Cause Courts Act, 1887, shall follow the practice and procedure prescribed for the time being by or under the said Act, in trying and hearing:

(1) suits and proceedings relating to the recovery of rent or charges for boarding, lodging or other service provided in a hotel or lodging house or the recovery, of possession of any premises, when the amount or value of the subject matter does not exceed (Rs. 2,000) and

(2) proceedings for execution of any decree or order passed in any such suit or proceeding.

Rule 9-B of the Bombay Rent Control Rules provides as under:

In miscellaneous applications a Court of Small Causes established under the Provincial Small Cause Courts Act, 1887, shall follow as far as may be and with the necessary modifications, the procedure applicable to suits or proceedings referred to in Rule 9-A as if such applications were suits of the description referred to therein.

3. Thus as per Chapter IV-A of the Bombay Rent Control Rules, a Court of Small Causes established under the provincial Small Cause Courts Act, 1887 has to follow as far as may be and with necessary modifications the procedure applicable to suits or Proceedings referred to in Rule 9-A as if such applications were suits of the description referred to therein. As per Rule 9-A, a Court of Small Causes established under the Provincial Small Cause Courts Act, 1887 has to follow the practice and procedure provided for the time being by or under the Provincial Small Cause Courts Act, 1887. Turning to Section 17 of the Provincial Small Cause Courts Act, 1887 one finds that the procedure prescribed in the Code of Civil Procedure, 1908, shall save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits. In order L of the Civil Procedure Code order IX is not shown as one of the provisions not applicable to the Court of Small Causes. The aforesaid provisions therefore provide that order IX Rule 8 of the Civil Procedure Code applies to applications for fixation of standard rent as the same relates to the procedure to be applied to such applications.

4. The further question which arises for consideration in this connection is as to whether order IX Rule 9 of the Civil Procedure Code applies with equal force to applications for fixation of standard rent. The answer to this question will depend on the finding as to whether order IX Rule 9 is entirely a matter of procedure or it wholly or partly deals with substantive law. None of the provisions of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act) or Bombay Rent Control Rules provides that the provisions of the Civil Procedure Code which do not deal with procedure will apply to applications for fixation of standard rent. Likewise, none of the provisions of the Provincial Small Cause Courts Act, 1887 provides that the provisions of Civil Procedure Code which do not deal with procedure will apply to suits and proceedings covered by the said Act.

5. Order IX Rule 9 of the Civil Procedure Code provides as under:

9(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall : be precluded from bringing a fresh suit in respect of the same, cause of action. Rut he may apply for an order to set the dismissal aside and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made wider this rule unless notice of the application-has been served on the opposite party.

This provision of a procedural statute provides that an applicant of an application for fixation of standard rent shall be precluded from making a fresh application in respect of the said cause of action if his application is wholly or partly dismissed under the aforesaid order IX Rule 8.

6. As far back as 1879 in the case of Henry J. B. Kendall and Ors. v. Peter Hamilton Appeal Cases 1878-79 Vol. IV 42-43 Victoria at p. 524 Lord Penzance has considered the efficacy of a rule of procedure and the importance that can be attached to the same. In the said case, the plaintiff had advanced a large sum of money to the defendant in conjunction with two other persons. The defendant had the full advantage and benefit of the plaintiffs money to the extent of his share in the joint adventure. In every aspect of the case, therefore, the plaintiff had no doubt acquired a legal, equitable, and moral right against the defendant to repayment. The said position was not even denied. The defence, however, that was set up against the said just claim rested upon as to whether in &accordance; with certain rule of procedure established some five-and-twenty years ago by the single case of King v. Hoare which had never till then had the sanction of the Court of Appeal, the plaintiff by bringing a previous action against two out of the three partners had wholly lost his remedy against the defendant, who was the third. Lard Penzance in a dissenting judgment in this connection had observed as under:

In this state of things I confess I am unwilling that your Lordships should confer the high sanction of this, the ultimate Court of Appeal, upon a rule of procedure which, without affecting to assert any just rights on the part of the Defendant, denies the aid of the law to enforce those of the Plaintiff. Procedure is but the machinery of the law after all the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct, and even extinguish, legal rights, and is thus made to govern where it ought to subserve.

Regarding Procedure what has been observed in 72 Corpus Juris secundum 1951 Edition on pages 473 and 971 is as under:

in fact, procedure includes every step which may be taken from the beginning to the end of a case. Procedure is the means whereby the court reaches out to restore rights and remedy wrongs, and it has been said that it must never because more important than the purpose which it seeks to accomplish.

The word 'procedure' is defined generally as meaning a course or mode of action; the act or manner of proceeding or moving forward; the manner of proceeding or acting; progress, process, operation, conduct; a step taken, an act performed, a proceeding.

7. In this connection, reference may be made to the case of Brijmohan and Ors. v. Raghoba A.I.R. 1932 Nagpur 101. In this case it has been held that the right to appeal is not merely a matter of procedure but one of substance and that it cannot arise by implication but only by virtue of an express enactment. Section 141 of the Civil Procedure Code cannot be interpreted as giving a substantive right to make an application to set aside the dismissal of an application for restoration of a suit dismissed in default. While agreeing with the said ratio, Jackson, J.C. has saccinctly observed as under:

The initial mistake, in my opinion, was made in Manakji v. Surajmal (6) in which it was held that if an application for setting aside a dismissal of a suit for default is itself dismissed for default an application for its reinstituiton can be entertained under the provisions of Section 141, Act 5 of 1908. Section 141 deals with procedure only and the above decision amounts to holding that the right to apply to set aside the dismissal for default of an application for setting aside the dismissal of a suit for default, is merely a matter of procedure. In Kalicharan v. Ratansingh (2) Hallifax, A.J.C. was correct in saying that the right of appeal is no more and no less a matter of procedure than the right to apply for the setting aside of a dismissal in default; but where he erred, I think, was in not realizing that neither right is a matter of procedure, both rights being substantive rights, which can only be given by express enactment.

(emphasis supplied)

8. As per the ratio in Brijmohan's case (supra), a substantive right can only be given by express enactment.

9. In Sm. Bhagwanti v. New Bank of India Ltd. A.I.R. (37) 1950 East Punjab HI, the Full Bench has held that besides prescribing the procedure, the Civil Procedure Code confers diverse powers and jurisdictions on the Court. By reason of Section 141, the company Court is to follow the procedure provided in regard to suits as far as it may be made applicable, for example, the provisions for discovery, inspection, hearing evidence, summoning of witnesses and the like, but the company Court cannot arrogate to itself the special powers and jurisdictions conferred by the Code on the civil Court. In paragraph 29 of the judgment, the Full Bench has further held that the proceedings under the Indian Companies Act, 1913 may be said to be proceedings of the nature contemplated by Section 141, Civil P.C. Section 141, however, deals with procedure and procedure alone. It does not confer any substantive right not expressly given elsewhere by the Code and the application of provisions of the Code of Civil Procedure dealing With substantive rights cannot be claimed merely on the strength of Section 141. The provisions contained in Section 90, Order 14, Rule 6 and Order 36, Rules I to 5 are not purely matters of procedure and that being so, it cannot be claimed that the Court acting under Section 153, Companies Act, 1913, has all the powers which are conferred under the Code of Civil Procedure upon a Court of civil jurisdiction dealing with a suit.

10. In paragraph 33 of the said judgment, it has been concluded that the provisions of the Code of Civil Procedure dealing with the powers of civil Courts to deal With matters that come up before them do not pertain to the domain of procedural law and that being so, Section 90 Rule 6 of Order 14 and Rules I to 5 of Order 36 do not empower the Court sanctioning the composition or scheme of arrangement under Section 153, Companies Act, 1913, to make directions of the type as are sought in the Claim petitions before the Coilrt.

11. The ratio of Brijmohan's case (supra) has been accepted in the case of Pooranchand Mulchand Jain v. Komalohand Beniprasad Jain : AIR1962MP64 . While entirely agreeing with the view expressed in Brijmohan's case (supra), the Division Bench of the M. P. High Court has observed that the remedy under Order 9 Rule 9 Civil Procedure Code is not a matter of procedure. The rule gives a substantive right of applying for restoration of a suit dismissed for default and this right cannot be conferred by Section 141 when it is made applicable to proceedings initiated on an application for setting aside the dismissal in default of an application for restoration of a suit under Order 9 Rule 9 Civil Procedure Code. Section 141 deals only with procedure and not with any substantive right. It does no more than provide the procedure to be adopted by courts of civil jurisdiction in dealing with matters before them. It does not provide that the Code is to be applied in its entirety to such proceedings so as to confer the right of appeal or any other substantive right in those proceedings.

12. In the case of Smt. Sayeeda Begam and Anr. v. Ashraf Husen and Ors. : AIR1980MP12 the question which was referred to the Division Bench for answer was : 'Whether the provisions of Order 22 read with Section 141 Civil Procedure Code would apply to proceeding initiated under Order 9 for restoration of a suit dismissed in default ?'. It was held that Order 22 contains penal provisions which affect substantive rights of the plaintiff or the appellant, as the case may be, when an application for substitution is not filed within time. The penal provisions have to be construed strictly. Unless they expressly declare the provisions to be applicable to a proceeding other than a suit or appeal, those provisions cannot be applied by analogy to such a proceeding.

13. In view of the aforesaid decisions, it would seem that the portion of Order 9 Rule 9 Civil Procedure Code which provides that the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action if his suit is wholly or partly dismissed under Order 9 Rule 8 enacts substantive law and is not procedural in nature. The same therefore in the absence of an express enactment in that connection cannot apply to a case such as the present and so fresh application for fixation of standard rent on the same cause of action will not be precluded. The bar provided under Order 9 Rule 9 would not apply to a fresh application for fixation of standard rent on the same cause of action. We therefore answer the question posed in the affirmative.

14. While passing the order in question, the learned District Judge has concluded that the second application for fixation of standard rent, namely, Civil Misc. Application No. 15 of 1977 was not maintainable in view of the decision in the case of Barkatali Abdulrahim Kasamwalini v. Sohiniben Jethalal Parikh 18 G.L.R. 913 and in the case of Dhobi Raheman Pirbhai (Deed) by his heirs & LRs. Pirbhai Rehman and Ors. v. Taherali Hasanali 20 G.L.R. 511. In Barkatali's case (supra), it has been held that once an application under Section 11'(3) of the Bombay Rent Control Act comes to be dismissed it would preclude the tenant from reagitating the question of standard rent. In this case, the applicant-tenant had filed an application No 836 of 1975 for fixation of standard rent in the Court of the Civil Judge (Junior Division) Baroda. The contractual rent was Rs. 500 per mensem. Interim rent was fixed at Rs. 300 per mensem. On 15-3-1976 the tenant's advocate requested the Court that as his client was out of station some time should be given to him presumably to deposit the amount. In para 6 of the judgment, it has been observed that Order 9, Rule 8 of the Civil Procedure Code applies to applications for fixation of standard rent. After examining the provisions of the Bombay Rent Control Rules, 1948 and those of the Provincial Small Causes, Court Act, 1887 it has been concluded that the final outcome of all those provisions was that Order 9, Rule 8 and Order 9, Rule 9 of the Civil Procedure Code would apply to applications for fixation of standard rent and that even if an application for standard rent was dismissed for default of appearance under Order 9, Rule 8 Civil Procedure Code no fresh application would be competent.

15. In Dhobi Raheman Pirbhai's case (supra), it has been held that Order 9 Rule 9 of the Code of Civil Procedure bars a fresh suit in. respect of the same cause of action where it has been dismissed for default on the part of the plaintiff. Therefore, ordinarily, a fresh standard rent application would not he unless the circumstances have so changed that the standard rent should be fixed again. Since in the instant case before us there is no question about any change of circumstances, it is not necessary for us to dwell on this aspect of the matter.

16. A perusal of the aforesaid judgments in Barkatali's case (supra) and Dhobi Raheman Pirbhai's case (supra) shows that attention of both the Courts was not invited to the various aforesaid decisions referred to by us. It further shows that the submissions which were made before us in that connection were not made before the said Courts. It is in the aforesaid circumstances that we have departed from the view taken in the said decisions and have answered the question posed for our consideration in the affirmative.

17. During the hearing, a reference has also been made to a decision of the Supreme Court in the case of Mistry Premjibhai Vithaldas v. Ganeshbhai Keshavrji 18 G.L.R. 790. In this case what has been held is that where a tenant does not prosecute an application for fixation of standard rent and deliberately permits it to be dismissed for non-prosecution, it could be reasonably inferred that it was not a bona fide application at all. In this case, the question regarding interpretation of order 9 Rule 9 of the Code of Civil Procedure had not arisen.

18. The learned advocate for the petitioner has invited our attention to the Full Bench decision of the Bombay High Court in Rajaram Withal v. Ramchandra Panda A.I.R. (35) 1948 Bombay 226. The question here was as to what happens when a suit for redemption brought by a mortgagor abates by reason of his death during the pendency of the suit and the second suit is brought by his heirs for redemption. While holding that such a second suit is not barred subject to the consideration regarding limitation, it has been held by the Full Bench as under:

Now, it is perfectly clear that when the suit abated, there was no express order of the Court extinguishing the right of redemption. Can it be said that the mortgagor could not enforce that right, because the second suit was barred under Order 22, Rule 9? If the Legislature in a piece of special legislation confers a particular right upon a party, it must intend that the right should be an enforceable right. Therefore, in our opinion, the general provisions of the Civil Procedure Code as contained in Order 22, Rule 9 are to that extent overridden by the specific provisions of Section 60, T.P. Act. So long as the relationship of mortgagor and mortgagee continues, and so long as the right to redeem has not been extinguished by a decree of the Court or by the act of the parties, the mortgagor is entitled to go to a Court of law to enforce his right.

Relying on the said ratio, the learned advocate for the petitioner has invited us to examine various provisions of the Bombay Rent Act in order to submit that the scheme of the Bombay Rent Act is such that the standard rent should be decided by the Court even if an application for fixation of standard rent is dismissed for default and a fresh application for the purpose is filed. Section 5(1) of the Bombay Rent Act defines 'standard rent.'

19. Section 7 of the Bombay Rent Act provides as under:

7. Except where the rent is liable to periodical increment by virtue of an agreement entered into before the specified date, it shall not be lawful to claim or receive on account of rent for any premises any increase above the standard rent unless the landlord was, before the coming into operation of this Act, entitled to recover such increase under the provisions of the Bombay Rent Restriction Act, 1939 (Bom. XVI of 1939), or the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944 (Bom. VII of 1944) or is entitled to recover such increase under the provisions of this Act.

20. Thus Section 7 of the Bombay Rent Act makes it unlawful for a landlord to receive an amount which is not standard rent within the meaning of the said Act. Under Section 11, a power has been given to the Court to fix the standard rent as per the provisions of the said section. Section 11 (3) of the Bombay Rent Act provides as under:

11 (3) If any application for fixing the standard rent or for determining the permitted increase is made by tenant who has received a notice from his landlord under Sub-section (2) of Section 12, the Court shall make an order directing the tenant to deposit in Court forthwith, and thereafter monthly or periodically, such amount of rent or permitted increases as the Court considers to be reasonably due to the landlord pending the final decision of the application and a copy of such order shall be served upon the landlord. Out of the amount so deposited, the Court may make order for the payment of such reasonable sum to the landlord towards payment of rent or increases due to him, as it thinks fit. If the tenant fails to deposit such amount, his application shall be dismissed.

Thus the scheme of the Bombay Rent Act goes to show that the standard rent should be fixed and the landlord cannot be permitted to get any more than the standard rent. The substantive provisions in this connection, namely, the right of tenant to get the standard rent fixed cannot be set at naught by the provisions such as Order 9 Rule 9 CPC. If an application for standard rent comes to be dismissed for default and if it were to be held that such dismissal would permanently bar the right of tenant to get the standard rent of his premises fixed for all time to come then it would be against the spirit of the Bombay Rent Act. If such a right was intended to be taken away from the tenant then an express enactment would be necessary in that connection as per the ratio in the aforesaid decisions and the same cannot be taken away by a provision such as Order 9 Rule 9 CPC since substantive provisions of a procedural law cannot be made applicable to a case such as the present. From this view point also it would seem that the aforesaid question posed should of necessity be answered in the affirmative.

21. It was urged before us that if such a tenant can file successive applications for fixation of standard rent on the same cause of action after his previous application for fixation of standard rent is dismissed for default, then the position of the landlord would be adversely affected and it would cause prejudice to the landlord. It may be pointed out in this connection that if an application for fixation of standard rent which is dismissed for default is not got restored then the tenant would lose the protection which he would otherwise enjoy under Section 12 of the Bombay Rent Act. The fact that a tenant whose application for fixation of standard rent is dismissed for default will be able to file a fresh application for fixation of standard rent would not mean that he would still enjoy the protection of Section 12 of the said Act. Considering the provisions of Section 12 of the Bombay Rent Act, the aforesaid submission made before us has little or no merit in it.

22. The right to file a fresh application if an application for fixation of standard rent is dismissed for default is not taken away by the provisions of the Bombay Rent Act and order 9, Rule 9 CPC cannot be held to have taken away the said right as stated hereinabove. To us it seems that it falls within the domain of a legislature to enact an express provision barring such a fresh application for standard rent on the same cause of action as the same cannot be done by procedural provisions enacting substantive law.

23. In view of the aforesaid, the revision application is allowed. The order dated 4th July 1981 passed in Civil Revision Application No. 1 of 1979 confirming the order dated 21-11-1978 of the trial Court is set aside. The matter is remanded to the trial Court to decide Civil Misc. Application No. 15 of 1977 according to law. Rule is made absolute. There will be no order as to costs.


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