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1996 Supreme(Bom) 92
IN THE HIGH COURT OF BOMBAY
A.P. Shah A.S. Venkatachala Moorthy, JJ.
Mrs. Shobhana Shankar Patil .... Petitioner.
Versus
Mrs. Ramchandra Shirodkar and others.... Respondents.
Writ Petition No. 2331 of 1982, decided on 14-2-1996.
Advocates appeared :
R.T. Walavalkar with N.V. Walavalkar, for the petitioner.
C.J. Sawant, A.G. with C.R. Sonavane, A.G.P., for the State.
Madhav Jamdar, for M.A. Rane, for respondent Nos. 2, 4, 5 and 6.
Headnote:Section 29(1)(a)-See Bombay Rents Hotels and Lodging House Rates Control Rules. 1948, Rule 9(2).
Article 226-Bombay Rents Hotels and Lodging House Rates Control Rules, 1948, Rule 9(2) read with Section 29(1) (a) of Bombay Rent Act, 1947-Dlfference of opinion between the Judges of the bench-The opinion rendered by two Judges of the appeal bench set aside-Matter remitted to appeal bench for deciding the appeal In accordance with law-Procedure prescribed by Section 96 CPC shall be followed till appropriate rule is framed by the Government.-Rule 9(2) of the Bombay Rents, Hotel and Lodging House (Rates Control) Rules, 1948 lays down that in case of difference of opinion in the Judges of the Bench in appeal under Section 29(1)(a) of the Act, the Judge, first in rank should have casting voice, The opinion of the Chief Judge and the Chief Judge is not a party to the Bench, the opinion rendered by the senior Judge is in effect given finality, Though, technically the appeal will be heard by two Judges but in substance and effect the rule reduces the appeal under Section 29(1)(a) to an appeal only to a single Judge which is clearly contrary to the provisions of the Act,
Even otherwise, the rule postulates that opinion rendered by the senior Judge should prevail when there is conflict between the two Judges, The rule appears to have been based on the assumption that opinion given by the Chief Judge or a Judge or a Judge having precedence in rank or seniority more experienced is always light and preferable to the opinion of Junior Judge, which in Court view is totally illogical and irrational the seniority or a rank of a Judge may be relevant consideration is the internal administration of the Court. It may also be relevant for further promotion to the higher Court but merely because the Judge happens to be the Chief Judge happens to be the senior Judge cannot be ground for adopting his decision as correct decision by completely disregarding the decision given by the Junior Judge.
2. The facts giving rise to this petition lie in a narrow compass.
The petitioner is the landlady of a chawl by name Shankar Patil Chawl at Andheri. A double room tenement, hereinafter referred to as "the suit premises", was let out to one Ramchandra Shirodkar at a monthly rent of Rs. 32.25 Ps. plus water charges of Rs. 4/- per month. After the death of the said Ramchandra, the respondents were accepted as tenants of the petitioner in respect of the suit premises.
The petitioner filed R.A.E. Suit No. 3391 of 1970 in the Bombay Small Causes Court on the ground of non-payment of arrears of rent of more than six months as well as the ground of waste of the suit premises allegedly caused by the respondents by reason of enclosing the front verandah of the premises. The learned Single Judge of the Small Causes Court by his judgment and decree dated July 25, 1980 decreed the petitioner's suit and ordered the respondents to vacate and hand over the vacant and peaceful possession of the suit premises to the petitioner by the end of December, 1980. The learned Single Judge, inter alia, held that the ground of non-payment of rent is proved and both Clauses (a) and (b) of sub-section (3) to section 12 of the Bombay Rent Act are attracted to the facts of the present case. The other ground of causing waste was, however, negatived by the learned Single Judge.
Aggrieved by the judgment and order of the learned Single Judge, the respondents filed Appeal No. 566 of 1980 before the Appellate Bench of the Small Causes Court. The learned Judges constituting the appellate bench differed in their conclusion and consequently gave differing judgments.
The Additional Chief Judge Mr. Pandit found that the respondents were ready and willing to pay standard rent an the permitted increases of the suit premises from April 1, 1968 and hence, provisions of section 12(3) (a) of the Bombay Rent Act were not attracted to the facts of the case. Mr. Pandit also pleased to hold that there is substantial compliance with section 12(3) (b) inasmuch as the tenants had deposited regularly the amount of monthly rent in the Court as per the Court's order during the pendency of the suit. Mr. Pandit, therefore, held that the appeal deserves to be allowed and ordered that the suit of the petitioner be dismissed with costs.
The Additional Chief Judge Mr. Lonkar, who came to a different conclusion than Mr. Pandit, found that the tenants had committed default in payment of rent and they were not at all regular in making the payment in Court. Mr. Lonkar also held that in view of the admission of Mr. Hegde, Advocate for the respondents, that the respondents has not deposited the rent in Court regularly as per the Court's order, the respondents could not be given protection of the Act. Mr. Lonkar, therefore, held that the trial Court was perfectly justified in coming to the conclusion that the respondents were not entitled to protection under section 12(3) (b) of the Act. In short, Mr. Lonkar expressed the opinion that there was no ground to interfere with the judgment and order passed by the learned Single Judge.
As a result of difference of opinion between the two Judges of the Appellate Bench, the following order was passed by the Appellate Bench:
"In view of the procedure to be followed in appeal contemplated by Rule 9 of the Bombay Rent, Hotel and Lodging House Rent Control Rules, 1948, and in view of the Judges constituting the Bench differing the Judge first in rank and precedent having cast a voice, the following order is passed in the Appeal:
Order: Appeal allowed.
Decree of the trial Court
for possession of the suit premises is set aside and the suit stands
