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HIGH COURT OF BOMBAY
GAJENDRAGADKAR, CHAINANI, JJ.
Bhagwant Rambhau Khese
Versus
Ramchandra Kesho Pathak
Second Appeal No.122 of 1949
Decided On : 13-03-1952
BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL ACT, 1947 - S.12(3) - APPLICABILITY - SUIT FILED BEFORE THE ACT CAME INTO FORCE - WHETHER THE TENANT IS ENTITLED TO THE PROTECTION OF S.12(3) - INTERPRETATION OF THE NEW PROVISO INTRODUCED BY THE BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL (AMENDMENT) ORDINANCE, 1949 AND BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL (AMENDMENT) ACT, 1949 - WHETHER THE NEW PROVISO BARS THE CHALLENGE TO THE APPLICABILITY OF A PARTICULAR SECTION OF THE ACT - WHETHER THE TENANT IS ENTITLED TO THE PROTECTION OF S.114 OF THE TRANSFER OF PROPERTY ACT.
Fact of the Case:
The suit was filed by the landlord to recover possession of the premises let out to the tenant on the ground of non-payment of rent. The tenant defended the suit on the ground that the rent had been regularly paid, that the notice given by the landlord had been waived by him by accepting rent from the tenant and that the suit was not maintainable without the Rent Controllers certificate. The trial Court found against the tenant on all the pleas made by him. However, the Court refused to pass a decree for ejectment in favor of the landlord as the tenant had expressed his readiness and willingness to pay the rent. The landlord preferred an appeal against the decree. Pending the appeal, the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Act 57 of 1947) came into force. The lower appellate Court held that the tenant was entitled to invoke the benefit of S.12(3) of the Act and dismissed the appeal.
Finding of the Court:
The Court held that the new proviso introduced by the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1949 and Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1949 does not bar the challenge to the applicability of a particular section of the Act. The Court further held that the tenant was not entitled to the protection of S.12(3) of the Act as the suit was filed before the Act came into force and S.12(3) is prospective in nature. The Court also held that the tenant was not entitled to the protection of S.114 of the Transfer of Property Act as the requirements of S.111(g) of the Act were not satisfied.
Issues: 1. Whether the new proviso introduced by the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1949 and Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1949 bars the challenge to the applicability of a particular section of the Act? 2. Whether the tenant is entitled to the protection of S.12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947? 3. Whether the tenant is entitled to the protection of S.114 of the Transfer of Property Act?
Ratio Decidendi: 1. The new proviso introduced by the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1949 and Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1949 does not bar the challenge to the applicability of a particular section of the Act. The challenge which is prohibited is in terms confined only to the ground that one Act rather than the other should have been applied. 2. The tenant is not entitled to the protection of S.12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as the suit was filed before the Act came into force and S.12(3) is prospective in nature. 3. The tenant is not entitled to the protection of S.114 of the Transfer of Property Act as the requirements of S.111(g) of the Act were not satisfied.
Final Decision: The appeal was allowed and the decree passed by the lower appellate Court was set aside. The suit was decreed in favor of the plaintiff and the defendant was directed to deliver vacant possession of the premises to the plaintiff on or before 1-10-1952.
GAJENDRAGADKAR, J. :- The short question which this appeal raises is whether a tenant who had been sued in ejectment by his landlord before the Bombay Rents, Hotel and Lodging House Rates Control Act, Bombay Act 57 of 1947, came into force is entitled to the protection of S.12(3) of the said Act. The landlord had sued the tenant to recover possession of the premises let out to him on the ground that the tenant had committed default in the payment of rent and the tenancy had been duly determined by a notice given by the landlord in that behalf. The defence was that the rent had been regularly paid, that the notice which had been given by the landlord had been subsequently waived by him by accepting rent from the tenant and that the suit was not maintainable without the Rent Controllers certificate. The premises were let out to the tenant on a monthly rent of Rs.7 inclusive of electricity charges. The trial Judge found against the defendant on all the pleas made by him. He, however, took info account the fact that the entire amount of rent due till the end of March 1946 and the costs of the suit had been produced by the tenant in the Court pending the hearing of the suit. He, therefore, held that the tenant had expressed his readiness and willingness to pay and so he refused to pass a decree for ejectment in favour of the landlord. He directed the defendant to pay the rent on or before the 10th of every month and added that if the defendant failed to pay the rent regularly, the landlord would be entitled to take possession by executing the decree. This decree was passed on 18-4-1946.
2. The landlord preferred an appeal against this decree. Pending the appeal Bom Act 57 of 1947 came into force on 13-4-1948. The lower appellate Court agreed with all the findings of fact recorded by the learned trial Judge and would have reversed his decree but for the fact that a decision of this Court in - Surjitlal Ladhamal v. Chandrasinh Manibhai, F.A. No.365 of 1947 D/- 1-4-1948 by Weston and Dixit, JJ. was cited before him on behalf of the tenant. This was-a judgment delivered by Weston and Dixit, JJ. in - "Surjitlals case in which they had applied, the provisions of the new Act to a first appeal which had arisen from a suit filed long before the new Act came into force. Relying upon this judgment the lower appellate Court held, that the tenant was entitled to invoke the benefit of S.12(3) of Bombay Act 57 of 1947; since the tenant had paid the whole amount of the rent due until the date of the trial Courts decree and the costs of the suit, the tenant was-naturally given the protection of the provisions of the said sub-section. The result was that the appeal was dismissed and the decree passed by the trial Court was confirmed, though for entirely different reasons. This decree was passed on 30-8-1948. It is this decree which is challenged by the landlord before us in the present second appeal.
3. Now, in dealing with the question as to. whether the provisions of S.12(3) of Bombay Act 57 of 1947 apply in the present case it is-necessary to refer to another decision of this Court and the amendment of the Act to which, it led. After Weston and Dixit, JJ. had delivered their judgment in - Surjitlals case F.A No.365 of 1947 (Bom) a Full Bench was constituted to consider the same question in - Nilkanth Ramchandra v. Rasiklal, 51 Bom LR 280 (FB). The point which the Full Bench had to consider was whether having regard to the provisions contained in the proviso to S.50 of the Act the other provisions of the Act were applicable to the suits which were not required to be transferred under the said proviso. This proviso as it originally stood required that all suits and proceedings except appeals and execution proceedings as described in the proviso which were pending in any Court shall be transferred to and continued before the Courts named in the Act and that all the provisions of this. Act and the rules made thereunder shall apply to all such
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