KHEMCHAND DAYALJI AND CO Vs. MOHMADBHAI CHANDBHAI

JUDGEMENT

(1.) The petitioners are the tenants and the respondent is the landlord. This revision application has been taken out by the tenants against the order passed by the Small Cause Court Ahmedabad dated March 15 1965 in an in application made by the opponent for a distress warrant in respect of an amount of Rs. 10 243 nP. and for permitting a sum of Rs. 9 442 being the amount for municipal taxes due and payable in respect of the leased premises to be seized from a certain amount deposited by the petitioners in the Court. An ex parte order on that application was first passed on February 19 1965 The petitioners however raised certain contentions and the Court after hearing the parties confirmed on March 15 1965 the order for issuing a distress warrant.

(2.) Prior to these proceedings the petitioners had filed a suit being Suit No. 1308 of 1963 in the Small Cause Court for possession of a bathroom which it was alleged was comprised in the leased property for fixation of standard rent and for a proportionate reduction in rent in the event of the respondent not giving possession of the bathroom. During the pendency of that suit the Small Cause Court fixed interim standard rent under sec. 11 of the Bombay Rent Act 1947 The interim standard rent fixed by the Court was the same as the contractual rent namely Rs. 2 171 per month and in addition thereto the municipal taxes levied on the property. It happened that the petitioners had advanced to the respondent a sum of Rs. 80 0 for the purpose of constructing this very building and under the terms of the lease it was agreed that out of the monthly rent of Rs. 2 171 the petitioners should pay Rs. 801/per month and the balance was to be credited to the petitioners towards satisfaction of the aforesaid loan. In pursuance of the order passed on December 23 1964 fixing as aforesaid the standard rent the petitioners deposited Rs. 2 403 as and by way of rent for the months of October to December 1964 and a sum of Rs. 8 921 nP. for the municipal taxes for the year 1964 On January 16 1965 the respondent applied for permission to withdraw the said amounts. The petitioners objected to such withdrawal and thereupon by an order dated February 15 1965 the Court permitted the respondent to withdraw the amount of Rs. 2 403 being the rent for the months of October November and December 1954 at the rate of Rs. 801 per month but did not permit the respondent to withdraw the amount of municipal taxes deposited in the Court. The result was that the respondent could not pay the municipal taxes and consequently proceedings were taken by the Municipal Corporation against him for the recovery of those taxes. It was in these circumstances that the respondent took out proceedings for a distress warrant on February 18 1955 The present application is directed against the aforesaid order dated March 18 1965 whereby the Small Cause Court confirmed its ex-parte order passed earlier on February 19 1965

(3.) The contention urged by Mr. Mehta is that the Small Cause Court Ahmedabad after the enactment of the Bombay Rent Act 1947 has two kinds of jurisdiction one under the Rent Act as the Court having the exclusive jurisdiction under sec. 28 of that Act and the other under the Presidency Small Cause Courts Act XV of 1882 that while exercising the jurisdiction conferred upon it by sec. 28 of the Rent Act the Small Cause Court cannot exercise its jurisdiction under the Presidency Small Cause Courts Act 1882 and therefore the Court had no jurisdiction to issue the distress warrant a jurisdiction conferred upon it by the Presidency Small Cause Courts Act 1882 Mr. Mehta argued that therefore the distress warrant was issued without jurisdiction and should be set aside. Mr. Nanavati on the other hand argued that while sec. 28 of the Rent Act confers jurisdiction upon the Small Cause Court in matters set out therein it does not deprive the Small Cause Court of the jurisdiction and powers derived by it under the Presidency Small Cause Courts Act 1882 and since the Small Cause Court has the jurisdiction to issue a distress warrant under Chapter VIII of that Act there would be no question of the impugned order having been made without jurisdiction.