1995 Supreme(Bom) 90

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Dr. E.S. Da Silva, J.
Manuel Mendes, since deceased, through his legal representatives.... Petitioners.
Versus
Smt. Shantidevi Ramchandra Halwai and others.... Respondents.
Writ Petition No. 275 of 1990, decided on 2-9-1995.
Advocates appeared :
S.G. Desai and S.G. Bhobe, for petitioners
S.K. Kakodkar, S.A. with R.V. Kamat, for respondent No. 2.

Headnote:Section 32-Proeeedings under-When can be available to landlord? Held-It available to a landlord on existing eviction, proceedings against tenant but invalid proceedings no have attract this provisions.

       Proceedings under Section 32 are available to the land Only when there is already eviction proceedings instituted by him against the tenant. In other words, Section 32 requires the existence of a valid eviction proceedings under the Act. Proceedings which are not valid cannot be said as attracting the provisions of Section 32. As rightly contended by Mr. Kakodkar, learned Counsel for the respondents, proceedings for eviction under the Act on its very face must disclose grounds for eviction.,

       The basic postulate in this regard is the disclosure of the grounds as provided in the statute. Proceedings under Sections 32 (3) and 32 (4) are just interim proceedings. Grounds are to be disclosed always, in the plaint in terms of Order VII, Rule 11 of the C.P.C. and a plaint is to be rejected for non-disclosure of cause of action since a party cannot prove facts which he had not alleged in his pleadings.

       Therefore, the learned Counsel contends, if any application for eviction does not disclose grounds for eviction the Rent Controller cannot entertain or assume jurisdiction to evict a tenant. In this regard the learned Counsel cited the same authority relied by Sri Dassi in the case of Official Trustee. West Bengal referred to above wherein it is laid down that before a Court on be held to have jurisdiction to decide a particular matter, it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for.

       It is not sufficient that it has some jurisdiction in relation to the subject matter of the suit. Its jurisdiction must include the power to hear and decide the question at issue. The authority to hear and decide a particular controversy though has arisen between the parties, what is relevant is whether he had power to grant the relief asked for in the application made by the said parties. The Supreme Court then observed that this seems to be the very essence of the matter. Therefore, according to the learned Counsel, if the respondents were able to satisfy that the petitioners application was not a valid application for eviction on account of his failure to disclose the cause of action or make out any ground for eviction under Section 32 (1) then the question of the applicability of Section 32 (1) did not arise.

       Section 32 (3) & 32 (1)-Scope of.

       There is no doubt that the dispute referred to in the aforesaid provision, is a dispute with regard to the quantum of rents payable by the tenants to the landlord. However, the said dispute need not be always a dispute directly raised by the tenant against the landlord.

       If this may be true in a case where there is only one tenant it cannot be ruled out that when there is more than one such dispute may arise between them which ultimately amounts to a dispute between the tenants and the landlord with regard to the amount of rents claimed by him from them in respect of the suit premises. If the landlord claims the whole amount of rents from any of them it is always conceivable that each of the tenants might dispute that any of them individually is bound to pay the full amount more so when in the instant case there is evidence to show that even prior to the filing of the application by the petitioner there was already a dispute between them so as to their share in the partnership which was sought to the terminated with regard to the business run in the suit premises.

       The said evidence also indicated that consequent upon that dispute the suit shop had been closed by an order of the Court and the respondents were out of the actual business which they were holding in the premises. Therefore, the plea made by the Respondent No.2 to determine the share of each of the tenants in respect of the rent payable to the landlord seems to be a quite reasonable and justified one in the facts and circumstances of the case thus falling within the purview and spirit of sub-section (3) of Section 32 of the Act which refers to any dispute as to the amount of rent due to the landlord by the tenants to be paid or deposited by them under sub-section (1) of Section 32.

       In this regard both the Courts below have held that such dispute could arise and the Rent Controller found that in the circumstances an enquiry should have been held for the purpose of determining the share of each of the tenants in the rents payable to the landlord. The Administrative Tribunal was agreed with this view taken by the Rent Controller and held that on facts there was sufficient ground for the Rent Controller to refuse to entertain the petitioners application for summary eviction of the respondent by stopping the proceeding under section 32(4) of the Act as prayed for by him. There is no reasons to believe that these findings of the Courts below are perverse or without jurisdiction, thus meriting interference on the part of this Court in the exercise of powers under Articles 226 and 227 of the Constitution.