NANJI PANCHA Vs. DAULAL NARAINDAS

JUDGEMENT

(1.) This revision application has been referred to the Division Bench by my learned brother Thakore J. on 13th March 1968. This revision application was filed on 4th April 1964 against the order of the District Judge Kutch dated 23rd January 1964 by which he allowed the tenants appeal and dismissed the plaintiffs suit for possession both on the ground of arrears of rent and subletting. The learned District Judge had confirmed the finding of the trial Court as regards the standard rent of the suit premises.

(2.) The short facts which have given rise to this petition are as under :- The suit shop is situated in Gandhidham. It was purchased on 13th September 1961 by the plaintiff for Rs. 6 0 and at that time the defendant tenant was attorned to the plaintiff. The contractual rent was Rs. 35 per month. As the defendant was in arrears of rent notice under sec. 12(2) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 hereinafter referred to as the Act was served by the plaintiff on the defendant on 15th December 1961. On 20th December 1961 the defendant tenant made an application before the trial Court for fixation of the standard rent and for determining the interim rent which he should deposit in the Court. No order was however passed by the Court specifying the amount of the interim rent. On 26th February 1962 the plaintiff filed the present suit for eviction on the grounds that the defendant was in arrears of rent to the tune of Rs. 161 for the period from 13th September 1961 to 31st January 1962 and that he had illegally sublet the suit premises. The defendant filed his written statement on 19th April 1962 denying all these contentions of the plaintiff. By a joint purshis of the parties on 25th April 1962; both these proceedings regarding the fixation of the standard rent and the suit for eviction were consolidated by the trial Court. On 30th April 1962 defendant tenant deposited Rs. 200 which would cover standard rent till 8th May 1962 There was no further deposit till 3rd August 1962 when issues were framed. On 3rd August 1962 the total dues in respect of standard rent came to Rs. 266-66P while the deposit as aforesaid was Rs. 200 only. Thereafter the defendant continued to deposit the rent in Court and upto 9th April 1963 he had deposited a sum of Rs. 450. There is no dispute that at the rate of this standard rent which is fixed by the trial Court at the time of judgment the amount which was deposited was in excess of the amount due to the plaintiff. The trial Court however held that the defendant was in arrears at the date of the first hearing and so he had not complied with sec. 12(3)(b) of the Act. The trial Court also held him guilty of subletting and on both these grounds passed a decree of eviction. In the other application it fixed the standard rent at Rs. 25 per month. The appellate Court however reversed this decree. The appellate Court held that no sub letting was proved. The appellate Court also held that there was no obligation on the tenant to pay or deposit the amount of costs unless the Court had issued any direction. The appellate Court also held that it was well settled after the decision of the Supreme Court in Vora Abbasali v. Haji Gulamnabi V G.L.R. 55 that after the Court resolved the dispute about the standard rent it had to fix the date for depositing arrears of standard rent along with the costs of the suit and the decree of eviction could be passed only after the tenant failed to comply with the said order. As such an opportunity was not given to the tenant in question the decree for possession could not be sustained. The appellate Court also observed that in the present case the defendant had applied for fixation of standard rent and had applied to get the interim rent fixed and the only irregularity on his part was that he did not press his request for fixation of the interim rent before the suit proceeded for trial. Merely because of this irregularity however the Court could not refuse to exercise its discretion to regularise all these payments and as all the arrears of rent had been deposited before the suit was finally disposed of. The appellate Court has therefore reversed the decree of the trial Court as aforesaid. The plaintiff has therefore challenged the said order in this revision application.

(3.) In view of the latest decision of their Lordships of the Supreme Court in Keshavlal Jethalal v. Mohanlal Bhagwandas in Civil Application No. 1271 of 1967 decided on 2nd April 1968 (IX G.L.R. (S.C.) 868) by the Full Bench of seven Judges it is now well settled that the present revision application which was filed on 4th April 1964 would have to be disposed of under sec. 115 of the Civil Procedure Code because the amendment which was introduced by sec. 29(2) of the Act and which conferred wider jurisdiction on this Court had no retrospective effect. Therefore all the revision applications which were filed before the said amendment which was introduced on 17th June 1965 would have to be disposed of under sec. 115 of the Code. Mr. Nanavati can therefore succeed only by showing that the error committed by the appellate Court was a jurisdictional error which can be corrected in the exercise of the powers of jurisdictional control under sec. 115 of the Code.